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Ioppolo, Alexandra --- "Making the Charitable Incision: Classifying Private Benefits in Charity Law" [2017] WAStuLawRw 7; (2017) 1 Western Australian Student Law Review 115


Alexandra Ioppolo[*]

Charity Law—Public Benefit—Private Benefit—Ancillary or Incidental Benefit—Classification of Benefits—Professional Associations—Tax Concessions

Tax concessions for charities have been justified on the premise that charities exist and operate for the public benefit, rather than for private benefit. In practice, charitable benefits do not flow exclusively to the public. Benefits will ultimately and inevitably accrue to individuals. Charity law has accommodated for this by permitting a class of private benefits that are ancillary or incidental to achieving a public benefit, as distinct from private benefits that are for independent purposes. Whilst this has occasioned in a muddy concoction of ways to discern this binary of private benefits, there is one judicial approach that upstages the rest. This article illustrates that adopting a holistic view in identifying a given charity’s purposes and activities is most appropriate for the purposes of drawing the line between private benefits that are ancillary or incidental to an overarching public benefit and private benefits that are discrete pursuits of the charity. The holistic method can be divided into a qualitative and quantitative test and elucidates the success of these tests in producing just outcomes by analysing case law in various jurisdictions. Lastly, this article proposes that a narrower qualitative test ought to be applied to professional associations in identifying ancillary private benefits.


Charities have always been seen to facilitate some kind of improvement or assistance in the community. Fundamental to the concept of charity is the notion of altruism.[1] An entity is considered altruistic if it is delivering a public benefit.[2] Does this mean that the existence of a private benefit deprives an entity of its charitable status? Traditionally, the concepts of private profit and charity were unequivocally incompatible.[3] In modern times, charity law recognises a class of private benefits that ostensibly serve as an ‘exception’ to the general prohibition on the generation and distribution of private profits. That is, private benefits that are ancillary or incidental to public benefits, distinguishable from private benefits that have an independent purpose. Whilst there has been a divergence in judicial approaches to identifying and classifying these private benefits, this article seeks to demonstrate that a holistic approach is preferable. Considering that, in reality, some charitable benefits will ‘ultimately accrue to individuals’, one might view this as the most pragmatic approach to the law.[4]


Charities are often considered a sub-set of not-for-profit entities,[5] and are governed by both statute and common law.

A statutory definition of ‘charity’ took effect from January 2014, which largely preserves the common law,[6] and applies only for the purposes of federal legislation.[7] Pursuant to this definition, a ‘charity’ may have purposes that are ‘incidental or ancillary to’ and ‘in furtherance or in aid of’ charitable purposes that are for the public benefit.[8] This is largely an iteration of the common law, with some minor modifications.[9]

At common law, an entity is a ‘charity’ if it satisfies two legal requirements. Firstly, its purposes must fall under a ‘head’ of charity, relating to the ‘relief of poverty’, the ‘advancement of education’, ‘the advancement of religion’, or ‘other purposes beneficial to the community’.[10]

In most instances, the ambiguous cases will involve charitable purposes that fall under the fourth head of charity. A purpose that is ‘beneficial to the community’ must be within the spirit and intendment of the Statute of Elizabeth,[11] and be for the public benefit. To satisfy the public benefit requirement, the entity must confer an ‘actual benefit’[12] on the public, or a relevant section of the public, as opposed to a private class of individuals.[13]

In the modern era, in departing from a hardline approach, courts will carefully examine the plethora of benefits that accrue to individuals.[14] If a non-charitable purpose benefits a private class of individuals in a way that is ‘merely concomitant or incidental’ to a charitable purpose, rather than being a sole discrete purpose in itself, an organisation may be able to retain its charitable status.[15] There are different judicial approaches to distinguishing between these categories of private benefits.


Recently, Australian courts have favoured taking a holistic view in determining whether an entity should be given charitable status.[16] That is, ascertaining the ‘character of an organisation’s main or dominant purpose’ by looking to the organisation’s constitution and activities holistically.[17]

In adopting a holistic approach, courts will engage in a two-pronged inquiry. That is, a qualitative and quantitative analysis of the organisation and its purposes. Despite a few minor drawbacks, this analysis best illustrates why the holistic approach is preferable to other approaches to determine status as a charity.

A Qualitative analysis

Qualitative analysis involves determining whether there is a ‘sufficient’ link between the private benefit and the public benefit.[18] Various terminology has been used to describe this link. When couched in terms of the ‘private benefit’, it must be ‘incidental’, ‘ancillary’, ‘concomitant’ or ‘collateral’ to the public benefit, in the sense of ‘not be[ing] of substance in its own right’.[19] For the purposes of the Charities Act 2013 (Cth), those private benefits must be a ‘necessary minor result or by-product, or conferred as a necessary means, of carrying out the entity’s charitable purposes’.[20] Other courts have phrased this link in terms of the public benefit. For example, the broader public benefit cannot be a mere ‘hope’.[21] Arguably, there are grounds for consternation regarding the inconsistent use of terminology in this area. The nuances associated with each synonym creates tests of varying degrees, which could potentially lead to diverse outcomes. However, patterns in the common law show that the weight a court gives to the ‘nature of activities’ has a significant impact on the scope of the test in determining the required link. The following analysis focuses on different judicial approaches to establishing whether the nature of activities satisfies the sufficient link criteria.

1 The nature of activities

The most relevant Australian decision for these purposes is Word Investments.[22] Word Investments Ltd, a company limited by guarantee, devoted the profits from its funeral and investment businesses to support evangelical religious activities of other entities. The High Court of Australia held that the company was charitable. It did not matter that the activities of the company, being involvement in funeral and investment businesses, were an indirect means to achieving the purpose of advancing religion. The High Court stated that the activities do not need to be ‘intrinsically charitable’, and that the inquiry should focus on whether the activities were carried on in furtherance of a charitable purpose.[23] Despite Jessup J’s suggestion at first instance that commercial activities ought to be ‘in harmony’ with the charitable purpose,[24] the High Court implied that there is no need to show commonality between the activities and charitable purpose.[25] In other words, the activities only have to be a means to pursuing the end, the end being a charitable purpose.[26]

In Chamber of Commerce and Industry of Western Australia (‘CCIWA’) v Commissioner of State Revenue,[27] Chaney P also emphasised the importance of the purpose for which the activities were carried on, as opposed to the nature of the activities.[28] The CCIWA is a membership organisation that promotes commerce in WA.[29] Having established that this was a charitable purpose, Chaney P focused his inquiry on whether this was the CCIWA’s main purpose.[30] The Commissioner, who rejected CCIWA's original application for exemption from payment of payroll tax, argued that the CCIWA’s charitable purpose was incidental to another purpose, being the provision of services to members.[31] However, Chaney P rejected this argument, and on the contrary, found that the advice, information and services provided to individual businesses, whilst providing ancillary private benefits, were an ‘integral part’ of creating a successful business community and were aligned with its core purpose of promoting industry and commerce.[32] Here, a membership subscription, for example, only indirectly furthered the charitable purpose of promoting industry and commerce, through an increase in revenue. Nonetheless, Chaney P found that provision of services to members was ‘ancillary to, and possibly a necessary part of fostering trade and commerce generally for the benefit of the wider community’.[33]

The Australian position can be contrasted to the narrower approach taken by New Zealand courts, which does consider the nature of the activities in determining whether there is a sufficient link between the ancillary benefits and the charitable purpose. In Canterbury Development Corporation v Charities Commission (‘Canterbury’),[34] the ancillary activities did not provide a sufficiently direct public benefit, but rather a general economic lift for the Canterbury region. In order to create jobs for the unemployed, the Canterbury Development Corporation had decided to provide financial assistance to individual businesses. The Court ultimately decided that this was an uncertain and excessively remote mode of achieving their so-called charitable purpose.[35] In Re Queenstown Lakes Community Housing Trust (‘Queenstown Lakes’),[36] the fact that householders were selected for housing on the basis that they would contribute to the social, cultural, economic and environmental wellbeing of the district conferred an ‘indirect’ and insufficiently ‘tangible and clearly defined benefit’.[37] The Canadian Supreme Court has also stated that the commercial activities must be in direct furtherance of a charitable purpose.[38]

An even narrower test was applied in the English case of Inland Revenue Commissioners v Oldham Training and Enterprise Council (‘Oldham’).[39] The Council engaged in activities such as business skills training of the unemployed, providing them with advice and cash allowance to create businesses that would employ other unemployed people.[40] The claimed charitable purpose was the promotion of industry, commerce and enterprise. In analysing the constitution of the Council and its operation, the Court concluded that the benefit conferred on the community by such activities was too remote, as it was insufficient that the improvement of employment prospects was only a ‘motive’ or a ‘likely beneficial consequence’.[41] Conversely, the Court in Canterbury indicated that by comparison to the Canterbury Development Corporation, the Council in Oldham was a ‘considerably more powerful case’ in favour of charitable status as far as the public benefit requirement was concerned as the activities specifically targeted the unemployed.[42] Therefore, the commonality between the ancillary activities and the charitable purpose was insufficient in that case.

2 Implications

The effect of the Word Investments decision is to it broadens the principle permitting incidental and ancillary non-charitable objects or purposes.[43] An entity is not precluded from charitable status if it engages in activities that do not directly affect its charitable purpose.[44] Is this decision problematic? There is a divergence of views in response to that question. One view in favour of the Word Investments approach is that ‘a qualifying test grounded in matters of degree’ is unnecessary, as long as the ‘profits’ flowing from commercial activities are wholly allocated to the charitable purpose.[45] Others have a ‘broader anxiety over the range of ends and means’ that can be pursued by charities.[46] In a practical sense, there is concern that entities will form as a charity for the purpose of tax evasion, utilising charitable activities or purposes as a guise for the true non-charitable activities or purposes that are at the core of their function.[47] However, the fact that the Federal Government initially proposed and subsequently abandoned an unrelated commercial activities test may attest to the insignificance of this concern.[48] On the contrary, one might take the view that broadening the range of activities available to charities incentivises the creation of more charities, contributing to the growth of the not-for-profit sector. A thriving not-for-profit sector is crucial, particularly in its role of addressing the shortcomings of the market economy.[49]

Whilst there is contention over the substance or form of the qualitative aspect of this test, what it does reveal is that taking a holistic view is the best way to proceed in this analysis. This is illustrated by way of comparison with the ‘orthodox’ approach adopted in older cases.[50] Pursuant to the ‘orthodox’ approach of determining charitable status, courts looks solely to the ‘ends or purposes’,[51] without regard to the activities, ‘indirect consequences’ or ‘ultimate purposes’ of the entity.[52] This hard-line approach does not permit any middle ground analysis of potential ancillary or incidental purposes or benefits. Activities are a useful tool in distinguishing between main and subsidiary objects, as they speak to the way in which these objects have been achieved or attempted.[53] For example, it takes into account the legitimate situation where a body has non-charitable purposes that are subsidiary to the dominant charitable purpose,[54] or conversely, where an organisation is using charitable purposes as a cloak for non-charitable purposes.[55] For example, upon analysing the constitution of the Law Institute of Victoria (‘LIV’) in Law Institute of Victoria v Commissioner of State Revenue[56] (‘Law Institute of Victoria’), the Court found that the 13 listed objects of the LIV, of and by themselves, did not assist in determining, with clarity, the main or dominant purposes of the LIV.[57] Rather, the Court assessed the LIV’s overall position ‘holistically’[58] and looked to the LIV’s membership activities, concluding that they constituted a ‘substantial independent objective’ and one of the ‘main drivers’ of the LIV.[59]

B Quantitative analysis

Quantitative analysis focuses on the way in which courts weigh up the aggregate of private benefits against public benefits of an organisation. Unfortunately, a convenient judicial resource that comprehensively catalogues recognised private benefits is yet to be developed. Therefore, courts rely on the given factual matrix or unique set of circumstances to quantify the private benefits. Pursuant to the holistic approach, it is essential to examine the constitution of an entity as a whole, as exclusive analysis of an organisation’s objects may not underscore the existence of a potential private benefit or adequately reflect the magnitude of the private benefit. Notions of ‘public’ and ‘private’ are not static or fixed,[60] and will strongly correlate to given political, social and economic contexts. The holistic view takes this into account, thus reinforcing its suitability in preference to the ‘orthodox’ approach.

There is no a ‘bright line’ test.[61] Australian courts do not apply some ‘notional cap’ to determine the balance between private and public benefits.[62] Courts must deduce the appropriate balance between private and public benefit. This value judgment is inevitably subjective, especially if there is minimal judicial guidance by way of precedent.[63] Therefore, a major downfall of this approach is the likelihood of inconsistent application, yielding to a high degree of unpredictability.

An English judge suggests that the question should be approached in terms of whether the private benefits were so ‘substantial’ as to outweigh the public benefit.[64] The Court also used this term in Law Institute of Victoria, stating that the membership activities constituted a ‘substantial’ area of the LIV’s operation, to the extent that it was no longer ancillary to its charitable objects.[65] However, the dominant view is that this approach is more useful for the purposes of qualitative analysis, rather than quantitative analysis.[66] In recent times, New Zealand courts have considered adopting a percentage measurement to determine ‘which side of the line the existence of personal benefits fall[s]’.[67] In Re Education New Zealand Trust, Dobson J indicated that if the purpose of the organisation is represented in 30 per cent or less of the activities or constitution, it ‘ characterised as independent’.[68] Whilst an objective criteria promotes certainty in the process, it does not take into account the ‘various permutations’ associated with ‘public’ and ’private’,[69] and the variable nature of these concepts, as discussed.

Being intrinsically fact-dependent, the vague and uncertain nature of the holistic approach is also burdensome on judicial resources, involving a great deal of mental rigour and time on the part of judges. Given there is little to assist judges in determining the threshold to satisfy the test,[70] a string of English cases have indicated their support for adopting a ‘benignant construction’ of a body’s founding documents ‘in favour [of the] charity’ in ambiguous cases.[71] However, this approach disparages the integrity of the public benefit requirement and its crucial role in determining whether an entity should receive charitable status for the purposes of revenue law tax concessions or exemptions.[72]


As can be seen from the above discussion of case law, the issue of distinguishing public and private benefits has been approached on a case-by-case basis, involving rigorous engagement with a given set of factual circumstances. However, some general classes of cases can be traced in the common law, categorised according to the type of body in question. Professional associations have been a recent body of contention.

In relation to professional associations, there is a strong case for adopting a narrower test when determining whether benefits flowing to members are ancillary. Members are not a relevant section of the public and the benefits accrued by virtue of their membership are private in nature.[73] This view stems from a general concern that whilst professional associations have an obvious public benefit, the benefits that are conferred on their members are not always apparent.[74]

There are several grounds for imposing a narrower qualitative test on professional associations seeking charitable status. Firstly, the entity already enjoys exclusive privileges by virtue of its status as a professional association.[75] Therefore, additional benefits would accrue to the association if also declared a charity. It is difficult to justify the award of further benefits to professional associations over other charitable organisations.

Secondly, associations can readily use charitable objects as a ‘cloak’ for non-charitable objects, powers and activities,[76] as discussed above.

Thirdly, associations in this context are clearly a significant concern for legislators. The fact that professional associations lie close to the boundary was noted whilst drafting the definition of ‘charities’ in the Charities Act 2013 (Cth).[77] In 2015, Western Australia (as well as the Northern Territory and Australian Capital Territory) introduced legislation restricting state tax concessions for professional associations. This was allegedly a reaction to the decision in the CCIWA case, which adopted the ‘incredibly’ wide test from Word Investments for determining the link between ancillary powers and activities and the ultimate charitable purpose.[78]

Fourthly, the fact that benefits are conferred on a private class of individuals that are members is advantageous to associations trying to obtain charitable status. Arguably, it is easier to show that private benefits accruing to members is in furtherance of a charitable purpose than benefits accruing to non-members. This gives rise to issues on several levels. Professional associations are unlikely to be charitable because, commonly, the ‘motivation’ or ‘activities’ of these entities results only in ‘indirect value to the general public’.[79] However, the Word Investments decision does not require a nexus between the activity conferring a private benefit and the charitable purpose for public benefit. Therefore, private benefits may be ‘too readily’ characterised as a means to the public benefit.[80] For example, the prospect of private benefits entices individuals to join, which increases the membership base and bolsters the financial position of the association, through payment of membership fee. These consequences allow the entity to further its broader public benefit of promoting industry or commerce indirectly through these private benefits.[81]

The Victorian Women Lawyers’ Association Inc v Federal Commissioner of Taxation illustrates this.[82] In that case, the Victorian Women Lawyers’ Association Inc was declared a charity. Justice French identified the association’s main object as a charitable purpose, namely to ‘remove barriers and increase opportunities for participation by and advancement of women in the legal profession in Victoria’.[83] The Commissioner had argued that the association was not charitable because its objects, which yielded private benefits to its members, lacked a direct public benefit.[84] Specifically, ‘the provision of a meeting ground for women lawyers, their continuing education and development and providing for their entry and advancement within the legal profession’ did not directly further the protection and advancement of persons practicing in the profession.[85] However, French J rejected this argument and held that these objects conferring private benefits were incidental to the charitable purpose.[86]

Further, the concept of ‘private benefit’ is different in a setting where the private class is something other than the members of the organisation. In those cases, to be sufficiently ‘public,’ the benefit must be directed to a section of the community that is economically or socially deprived. In Canterbury Development Corporation v Charities Commission (‘Canterbury’), the Court expressly stated that the outcome of the case may have been different if the benefit targeted an identifiable economically-deprived area in New Zealand.[87] The Court distinguished the public benefit established in the Australian decision of Tasmania Electronic Commerce Centre,[88] as the purpose of encouraging electronic commerce was directed to improving Tasmania’s ‘deprived’ economy.[89] By virtue of falling into a class of cases that involves members, associations do not have this extra requirement to prove. The gap between public and private benefits is smaller, and it is arguably easier for an association to show that private benefits are in furtherance of a public benefit to the community.

These reasons justify taking a stricter approach when assessing the private benefits conferred by associations. At state level, this has been achieved to some extent by way of legislative response.[90] The effect of the legislation is that professional associations are excluded from state tax concessions, unless they apply for assessment by the Finance Minister to be re-included.[91] However, conferring on the executive what is traditionally a determination reserved for the judiciary is contrary to the doctrine of separation of powers.[92]

Alternatively, this might be resolved by applying a stricter judicial test to cases involving professional associations. For example, courts could apply the narrower approach to qualitative analysis articulated in Canterbury and Queenstown Lakes, which would require the association to show that the activities conferring private benefits provide a ‘direct, substantial and provable benefit to the community’.[93]


On balance, it appears that taking a holistic approach to the inquiry of charitable status is most fitting. The inconsistent and unpredictable outcomes flowing from this approach are perhaps its largest flaw. It appears impossible to manufacture a single set of uniform judicial scales to weigh public benefits against the private benefits in each instance. One commentator doubts whether there will ever be a ‘truly prescriptive test’.[94] Nevertheless, its flexibility makes it most suitable for this inquiry, especially as ‘it cannot be assumed that distinguishing public from private in this context always involves the same inquiry’.[95] It allows for multiple lines to be drawn, and therefore for narrower tests to be applied in relation to certain entities, such as professional associations, to adequately reflect policy concerns. This approach has been recognised in preference to other ad hoc initiatives,[96] because it arguably provides a degree of consistency in this area by creating a body of precedent that future courts can rely on by way of analogy. Whilst the uncertainty associated with this approach is unsettling and burdensome, it is ‘pretty much everything worth arguing in the law’.[97]

[*] BA, LLB. Alexandra recently graduated from the University of Western Australia.

[1] Inland Revenue Commissioners v Oldham Training and Enterprise Council (1996) TC 231, 250 (Lightman J).

[2] Ibid.

[3] Re Resch’s Will Trusts [1969] 1 AC 514.

[4] Gino Dal Pont, Law of Charity (2010, Lexisnexis Butterworths, NSW) 60 [3.23].

[5] See Productivity Commission, Contribution of the Not-for-Profit Sector, Research Report (11 February 2010) 8.

[6] Explanatory Memorandum, Charities Bill 2013 (Cth); Explanatory Memorandum, Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 3.

[7] Ian Murray, ‘Not-for-profit Reform: Back to the Future?’ (2014) 20(1) Third Sector Review 109, 123.

[8] Charities Act 2013 (Cth) ss 5(b)(i), (ii).

[9] Murray, above n 7, 124.

[10] Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 530, 531, 573 (Lord Herschell, Lord Watson agreeing), 583 (Lord Macnaghten, Lords Morris and Watson agreeing).

[11] Though this requirement is now thought to be archaic. See G E Dal Pont, ‘Conceptualising Charity’ (2013) 7(1) Journal of Equity 1, 2.

[12] Re Pinion [1965] Ch 85, 107 (Harman LJ), 107–8 (Davies LJ), 109–11 (Russell LJ); Gilmour v Coats [1949] UKHL 1; [1949] AC 426, 446 (Lord Simonds).

[13] Thompson v Federal Commissioner of Taxation [1959] HCA 66; (1959) 102 CLR 315, 321–3 (Dixon CJ, Fullagar and Kitto JJ in agreement).

[14] Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] UKHL 1; [1953] AC 380, 397 (Lord Normand), 397–8 (Lord Oaksey), 400 (Lord Morton), 402 (Lord Reid), 405 (Lord Cohen).

[15] Stratton v Simpson [1970] HCA 45; (1970) 125 CLR 138, 159–60 (Gibbs J).

[16] Victorian Women Lawyers' Association Inc v Federal Commissioner of Taxation [2008] FCA 983; (2008) 170 FCR 318, 352 (French J).

[17] See, eg, Chamber of Commerce and Industry of Western Australia (Inc) v Commissioner of State Revenue [2012] WASAT 146, [2] (Chaney P).

[18] Ian Murray, ‘The taming of the charitable shrew: State roll back of charity tax concessions’ (2016) 27 Public Law Review 54, 58.

[19] Navy Health Ltd v Deputy Commissioner of Taxation [2007] FCA 931; (2007) 163 FCR 1, [65] (Jessup J).

[20] Explanatory Memorandum, Charities (Consequential Amendments and Transitional Provisions) Bill 2013, 1.70.

[21] Canterbury Development Corporation v Charities Commission [2010] NZHC 331; [2010] 2 NZLR 707.

[22] Commissioner of Taxation (Cth) v Word Investments Ltd [2008] HCA 55; (2008) 236 CLR 204 (‘Word Investments’).

[23] Ibid.

[24] Commissioner of Taxation v Word Investments Ltd [2007] FCAFC 171; (2007) 164 FCR 194, [97] (Jessup J).

[25] Murray, ‘The taming of the charitable shrew’, above n 18, 59.

[26] Ibid.

[27] Chamber of Commerce and Industry of Western Australia (Inc) v Commissioner of State Revenue [2012] WASAT 146.

[28] Ibid [90] (Chaney P).

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid [97] (Chaney P).

[33] Ibid.

[34] Canterbury Development Corporation v Charities Commission [2010] NZHC 331; [2010] 2 NZLR 707.

[35] Ibid [67] (Young J).

[36] [2011] NZHC 617; [2011] 3 NZLR 502.

[37] Ibid [71], [75] (MacKenzie J).

[38] Vancouver Society of Immigrant & Visible Minority Women v Minister of National Revenue (1999) 169 DLR (4th) 34, [158] (Iacobucci J).

[39] Inland Revenue Commissioners v Oldham Training and Enterprise Council (1996) TC 231.

[40] Ibid.

[41] Ibid.

[42] Canterbury Development Corporation v Charities Commission [2010] NZHC 331; [2010] 2 NZLR 707, [54] (Young J).

[43] Dal Pont, ‘Conceptualising Charity’, above n 11, 7.

[44] Murray, ‘The taming of the charitable shrew’, above n 18.

[45] Dal Pont, ‘Conceptualising Charity’, above n 11, 25.

[46] Murray, ‘The taming of the charitable shrew’, above n 18, 62.

[47] Auckland Medical Aid Trust v Commissioner of Inland Revenue [1979] 1 NZLR 382, 395 (Chilwell J).

[48] Murray, ‘The taming of the charitable shrew’, above n 18, 69.

[49] Lester M Salamon, America’s Nonprofit Sector: A Primer (Foundation Center, 2nd ed, 1999) 11–13.

[50] Jonathan Garton, ‘Charities Purposes and Activities’ (2014) Current Legal Problems 67, 373.

[51] C Cullity, ‘The Myth of Charitable Activities’ (1990–1) 10 Estates Trusts Journal 7, 10.

[52] General Nursing Council for England and Wales v St Marylebone Borough Council [1959] AC 540 (Lord Keith).

[53] Garton, above n 50, 397.

[54] Ibid.

[55] Auckland Medical Aid Trust v Commissioner of Inland Revenue [1979] 1 NZLR 382, 395 (Chilwell J).

[56] Law Institute of Victoria v Commissioner of State Revenue [2015] VSC 604.

[57] Ibid [175], [186] (Digby J).

[58] Ibid [351] (Digby J).

[59] Ibid.

[60] Dal Pont, ‘Conceptualising Charity’, above n 11, 33.

[61] Mark Mullen, ‘R (Independent Schools Council) v. The Charity Commission for England and Wales H.M. Attorney General v. The Charity Commission for England and Wales’ [2011] UKUT 421, [3].

[62] Ian Murray, ‘Public Benevolent Institutions for Native Title Groups: an under appreciated model?’ (2015) Federal Law Review 43, 446.

[63] Oppenheim v Tobacco Securities Trust Co Ltd [1950] UKHL 2; [1951] AC 297, 305 (Lord Simonds).

[64] Helena Partnerships Ltd v Revenue and Customs Commissioners (Attorney General intervening) [2012] PTSR 1409 (Lloyd LJ).

[65] [2015] VSC 604, [349] (Digby J).

[66] Juliet Chevalier-Watts, ‘The public benefit requirement in charity law: the mystery of the balancing act: Juliet Chevalier-Watts’ (2015) 21(4) Trusts & Trustees 371, 388.

[67] Re Education New Zealand Trust (2010) 24 NZTC 24, [44] (Dobson J).

[68] Ibid [43] (Dobson J).

[69] Dal Pont, ‘Conceptualising Charity’, above n 11.

[70] Oppenheim v Tobacco Securities Trust Co Ltd [1950] UKHL 2; [1951] AC 297, 305 (Lord Simonds).

[71] Hadaway v Hadaway [1955] 1 WLR 16 (PC), 19 (Viscount Simonds).

[72] Dal Pont, Law of Charity, above n 4, 16.

[73] Explanatory Memorandum, Charities (Consequential Amendments and Transitional Provisions) Bill 2013, 1.71.

[74] Dal Pont, Law of Charity, above n 4, 325.

[75] Ibid 327.

[76] Auckland Medical Aid Trust v Commissioner of Inland Revenue [1979] 1 NZLR 382, 395 (Chilwell J).

[77] Explanatory Memorandum, Charities (Consequential Amendments and Transitional Provisions) Bill 2013, 1.72.

[78] Murray, ‘The taming of the charitable shrew’, above n 18, 55.

[79] Explanatory Memorandum, Charities (Consequential Amendments and Transitional Provisions) Bill 2013, 1.72.

[80] Murray, ‘The taming of the charitable shrew’, above n 18, 61.

[81] Ibid 59.

[82] [2008] FCA 983.

[83] Ibid [147] (French J).

[84] Ibid [143] (French J).

[85] Ibid [142] (French J).

[86] Ibid [147] (French J).

[87] Canterbury Development Corporation v Charities Commission [2010] NZHC 331; [2010] 2 NZLR 707, [61] (Young J).

[88] [2005] FCA 439; 142 FCR 371.

[89] Ibid [61] (Heerey J).

[90] See, eg, Taxation Legislation Amendment Act (No 2) 2015 (WA).

[91] Western Australia, Parliamentary Debates, Legislative Council, 3 December 2014, 9168 (Peter Collier, Leader of the Government in the Legislative Council).

[92] Murray, ‘The taming of the charitable shrew’, above n 18.

[93] Dal Pont, Law of Charity, above n 4.

[94] Chevalier-Watts, above n 66.

[95] Dal Pont, ‘Conceptualising Charity’, above n 11.

[96] Ibid.

[97] Irwin, Former Collector of Internal Revenue v Gavit, [1925] USSC 121; 268 US 161,168 (1925).

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