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What's public benefit got to do with it? How the law in Australia relating to the public benefit requirement of 'charitable' applies to charities for the benefit of Australian indigenous people


The conferral of charitable status on an organization provides for the flow on of important tax concessions attaching to the entity. The most significant example is the exemption from income tax under the Income Tax Assessment Act, 1997. It is generally agreed that for an organization to be charitable it must not only fall within one of the four headings set out by Lord Macnaghten in Pemsel’s case but it must also be founded for the benefit of the public or a significant section of the public (with the exception of charities for the relief of poverty). This article considers the application of this principle to current Australian law and whether it has been applied to cases involving charities founded for the benefit of Australian indigenous people. It considers the rationale for this approach and whether it is in accordance with current social needs and public policy to apply this principle to charities relating to Australian indigenous people.

Author profile

Dr Fiona Martin CTA
Fiona is a solicitor, academic and chartered tax adviser with The Taxation Institute. She commenced working as an academic after several years as a lawyer, both with the government (including the Attorney-General's Department) and in private practice. Her expertise and research are in the taxation law area and in particular how it relates to charities and interacts with issues relating to human rights and traditional land owners. Fiona has published many articles in highly regarded international and Australian law journals, including the Australian Tax Forum and Common Law World Review. She has presented at conferences on issues relating to taxation concessions applying to charities, the application of the GST particularly as it relates to charities and income tax and property development generally. She has also published a number of book chapters and a textbook in the revenue law area. In 2013, she was awarded her doctorate on the application of income tax principles to resource agreements with Indigenous Australians, with particular emphasis on the use of Indigenous charities as a tax-exempt structure. She has also received several research awards. - Current at 01 April 2016
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