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Has the Charities Act 2013 changed the common law concept of charitable “public benefit” and, if so, how?

Published on 01 Mar 15 by "AUSTRALIAN TAX FORUM" JOURNAL ARTICLE

In 2013, the Charities Act 2013 (Cth) was enacted and it came into effect on 1 January 2014. This is the first time that there has been an enactment of a statutory definition of the legal concept of “charity” in Australia. The definition is important for many areas of personal and commercial life, however one of the most significant, at least from a legal point of view, is how this definition operates in the context of Australian taxation law. This is particularly relevant in view of the fact that charities are exempt from income tax and subject to many other tax concessions at federal, state and local government level. Under Australian common law, a charitable entity was required to have a charitable purpose and be of benefit to the public.

This article introduces the statutory definition and how it confirms the common law definition of charity and charitable purpose in certain instances, but also amends and expands these concepts. This discussion is provided as a context for the analysis of how the issue of public benefit has been dealt with under the statute. The article concludes with an analysis of how the Act has amended the application of the public benefit test to recipients of payments in respect of native title and traditional Indigenous lands.

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 Click here to expand/collapse more articles by Fiona MARTIN.
 
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