PBI ruling offers lessons for charities
25 March 2021 at 5:05 pm
Women’s Life Centre has lost an appeal for public benevolent institution registration
The Administrative Appeals Tribunal has affirmed a decision by the charities commission to deny an organisation public benevolent institution status, in a ruling experts say has lessons for the sector.
New South Wales charity Women’s Life Centre (WLC), which provides counselling services to women in need facing a crisis pregnancy, has been registered as a charity with the purposes (or subtypes) of advancing health and advancing social or public welfare since 2017.
But the Australian Charities and Not-for-profits Commission declined to also register it as a public benevolent institution (PBI), which would make it eligible for charity tax concessions and deductible gift recipient (DGR) status.
Women’s Life Centre reviewed the decision at the AAT, which ruled earlier this month in favour of the ACNC.
The AAT questioned whether WLC’s services were targeted enough to meet the definition of a PBI – an organisation that “provides relief for those who are sick, suffering, helpless or in distress, or subject to misfortune or to the disabilities of the aged or the young”.
The tribunal said it was difficult to be confident that all or even most of the women who used the charity’s services would experience the sort of unmet need required to meet the definition.
“Even if we assume many women experiencing a ‘crisis pregnancy’ also have an unmet need of the kind referred to in those cases, the services provided by WLC do not appear to be precisely targeted towards providing relief to those individuals, as opposed to pregnant women more generally,” it said.
“The services appear to be available to all women who ask for assistance, including pregnant women who might simply be feeling unease or uncertainty. The lack of targeting would appear to be a problem.”
The AAT concluded that ambiguity around the concept of a “crisis pregnancy” meant WLC’s services could not be “comfortably accommodated within the relatively narrow confines of the public benevolent institution”.
ACNC assistant commissioner general counsel Anna Longley welcomed the ruling, believing this endorsed the commission’s approach to determining charities’ eligibility for PBI registration.
“While all registered charities help our community in one way or another, it was central to the AAT’s decision that services provided by charities registered as a PBI need to be targeted towards those people in our community experiencing serious poverty, distress or misfortune, and for whom the relief provided by a PBI may be vital,” Longley said.
Charity law advisor Murray Baird told Pro Bono News there were lessons that the sector could glean from this case.
“The sector should simply take the lesson that every charity law application is a matter of characterising your organisation as falling into one of the subtypes of charity, and that characterisation is a holistic analysis of your purposes and your activities and your documents,” Baird said.
“And if you have to seek review at the Administrative Appeals Tribunal, then their job is to assess whether the ACNC made a wrong decision… with a burden on the applicant to show that the ACNC decision was wrong.
“In this case, the tribunal said the applicant fell short on that burden.”
ACNC set to face another PBI appeal
The Australians for Indigenous Constitutional Recognition (AICR) is also challenging the ACNC on its decision to deny it PBI registration.
The Australian reported that the ACNC believes the charity’s purpose of advancing education and promoting reconciliation lacks “a clear mechanism for the delivery of relief” needed to meet the PBI definition.
But the AICR said its education activities were “only intended to be undertaken as a means to achieving its benevolent purpose”.
Ian Murray, an associate professor at the University of Western Australia Law School, told Pro Bono News that the WLC ruling could have some implications for AICR’s case.
“With the earlier Hunger Project case relatively recently removing the need for relief to be provided directly to those in need, courts are still working through what it means to target such relief to the group in need via indirect means,” Murray said.
“Women’s Life Centre is potentially an example of a narrow interpretation of this requirement by the ACNC and then the tribunal.
“Alternatively, the Women’s Life Centre case could also be viewed as showing how difficult it is to provide evidence of this targeting of relief.”