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Public Benefit: The Long and Winding Road to Reforming the Public Benefit Test for Charity: A Worthwhile Trip or ‘Is Your Journey Really Necessary?’
Introduction The interpretation of the public benefit test in the law of charity is a major issue for Native Title Groups under the Native Title Act 1993 (Cth) (NTA) and Traditional Owners under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) that wish to use a charitable structure. This is because the common law poses a legal barrier to the establishment of charities for the benefit of Native Title Groups and Traditional Owners, who are defined through their family relationships. If the beneficiaries of a charity's charitable purpose are a family it will fail the public benefit requirement and will not be eligible for charitable status even though it meets all the other legal criteria.
Charitable status is inherently linked in many jurisdictions with the requirement that an entity must be established for public benefit. But, until recently the public benefit principle had relatively little impact on the operations of most established charities. However, in England and Wales, reforms linked to the «Charities Act 2006» led to a new requirement for public benefit reporting in the trustees’ annual report (TAR) of every registered charity. This new narrative reporting requirement had the potential to affect the understanding of accountability by charities. The paper investigates the impact of that requirement through a study of over 1,400 sets of charity reports and accounts and subsequent qualitative work with trustees and others involved in preparing TARs.
The traditional distinctions between state schools and fee-charging independent schools have been challenged over the years, with charitable status at the core of the crossover. The changing relationship between the state and charitable sectors and the resultant blurring of the dividing line between them leads us to examine the role that charities now play within the coalition government's Big Society agenda. In the context of schools, a new paradigm, acknowledging the profoundly significant contribution of charity to state schools, is suggested, and evidence is provided to support this new paradigm by way of two waves. The previous and the current government have embraced charitable provision, such that it is now deeply embedded within state education. Charity-led community involvement in education services may well come to dominate rather than simply back up state provision and this leads us to question the distinction between those schools with and those without charitable status.
The enactment of the Charities Act 2006 is widely viewed as one of the most momentous events in the recent history of English charity law, and the impact of the Act on the pre-existing law is still being debated. This paper inquires into the operation of the Act within the religious sphere. It seeks to explore the basis upon which charitable recognition was accorded within this sphere before the Act and to assess how far the law that was previously in force has been preserved, modified or rendered inoperative by the provisions of the Act. Three fundamental dimensions of the legal regime governing religious charities are especially relevant to this inquiry. The first dimension encompasses the elusive quest for the meaning of religion in the charitable sense. The second focuses on the long-standing requirement that religious purposes must be beneficial to the public in order to be charitable. The third is concerned with the human rights implications of conferring or withholding charitable status within the religious domain. Each dimension is examined in turn with a view to providing an insight into the complexities and difficulties inherent in the pre-existing law and the extent to which these have been addressed by the reforms contemplated by the Act.