Equality Australia Ltd and Commissioner of the Australian Charities and Not-for-profits Commissioner

[2023] AATA 2161

Equality Australia Ltd and Commissioner of the Australian Charities and Not-for-profits Commissioner [2023] AATA 2161 (30 June 2023)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2021/3774

Re:Equality Australia Ltd

APPLICANT

AndCommissioner of the Australian Charities and Not-for-profits Commissioner

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe, Senior Member Ann O'Connell, Member Louise Bygrave

Date:30 June 2023

Place:Sydney

The decision under review is affirmed.

........................[SGD]..............................................

Deputy President Bernard J McCabe

CATCHWORDS

PUBLIC BENEVOLENT INSTITUTION – where the Applicant is registered as a charity under the subtype ‘advancing public debate (promoting or opposing a change to any matter established by law, policy of practice in the Commonwealth, a state, territory or another country)’ – whether the Applicant is entitled to be registered with the subtype ‘public benevolent institution’ – whether the Applicant is organised or conducted for or promotes the relief of distress – whether members of the LGBTIQ+ community are persons in need of benevolence – whether the Applicant provides relief – decision under review affirmed

LEGISLATION

Australian Charities and Not-for-Profits Commission Act 2012 (Cth)

Benevolent Society (Reconstitution) Act 1998 (NSW)
Benevolent Society of New South Wales Act 1902 (NSW)
Charities Act 2013 (Cth)
Corporations Act 2001 (Cth)
Estate Duty Assessment Act 1914-1928 (Cth)
Fringe Benefits Tax Assessment Act 1986 (Cth)
Human Rights (Sexual Conduct) Act 1994 (Cth)
Income Tax Assessment Act 1915 (Cth)
Income Tax Assessment Act 1922-25 (Cth)
Income Tax Assessment Act 1927 (Cth)
Income Tax Assessment Act 1997 (Cth)
Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)
Social Services Consolidation Act 1947-49 (Cth)

Taxation Laws Amendment (No 2) Act 1993 (Cth)

CASES

Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539

Ambulance Service of New South Wales v DFCT, [2002] FCA 1023
Australians for Indigenous Constitutional Recognition v Commissioner of the Australian Charities and Not-for-profits Commission [2021] FCA 435
Chesterman v Federal Commissioner of Taxation (1923) 32 CLR 362
Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute [1990] ATC 4752
Commissioner of Taxation v The Hunger Project Australia [2014] FCAFC 69
Federal Commissioner of Taxation v Launceston Legacy (1987) 75 ALR 122
Global Citizen Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2021] AATA 3313
Lemm v Federal Commissioner of Taxation [1942] HCA 31; 66 CLR 399
Maughan v Federal Commissioner of Taxation, [1942] HCA 32; 66 CLR 388
Perpetual Trustee Co Ltd v Federal Commissioner of Taxation [1931] HCA 20; 45 CLR 224
Special Commissioners of Income Tax v Pemsel [1891] AC 531
The Hunger Project Australia v Commissioner of Taxation [2013] FCA 693
Waubra Foundation v Commissioner of the Australian Charities and Not-for-profits Commission [2017] AATA 2424

Young Men’s Christian Association of Melbourne v Federal Commissioner of Taxation [1926] HCA 2; (1926) 37 CLR 351

SECONDARY MATERIALS

Australian Bureau of Statistics, Year Book Australia

Australian Human Rights Commission, Human Rights and Gay, Lesbian, Bisexual, Transgender and Intersex people
Australian Parliament, Parliamentary Library, Welfare review (e-brief) Peter Yeend, Analysis and Policy, Social Policy, September 2000
Australian Taxation Office, Gifts and Fundraising for non-DGRs
Australian Treasury, Guidance on DGR specific listing applications
Benevolent Society, Mission and Vision
Dennis Pearce, Statutory Interpretation in Australia, 9th edition, 2019, Lexis Nexis, Chapter 4
Explanatory Memorandum to the Australian Charities and Not-for profits Commission (Consequential and Transitional) Bill 2012.
Fiona Martin, ‘Tax Deductibility of Philanthropic Donations: Reform of the Specific Listing Provisions in Australia’, (2018) 33(3) Australian Tax Forum 533

Kelly O’Dwyer, Media Release 11 May 2018

REASONS FOR DECISION

30 June 2023

DEPUTY PRESIDENT BERNARD J MCCABE, MEMBER LOUISE BYGRAVE

1. This case arises out of an application by Equality Australia Ltd (EAL) to be registered as a charity with the sub-type ‘public benevolent institution’ under the Australian Charities and Not-for-Profits Commission Act2012 (Cth) (the ACNC Act). EAL says it qualifies as a public benevolent institution because it works to relieve distress experienced by persons who identify as LGBTQI+.[1] The Commissioner of the Australian Charities and Not-for-profits Commission (ACNC) says EAL does not qualify as a public benevolent institution in the sense that term is used in the legislation. 

   [1] The acronyms ‘LGBTQI’ and ‘LGBTQI+’ were explained by Ms Anna Brown, the chief executive officer of EAL, in her statement dated 18 February 2022 at [29] as follows:

   The acronym ‘LGBTI’ or ‘LGBTIQ+’ is often used to identify a group of people who are identified as belonging to minority social groups based on the personal attributes of sexual orientation, gender identity and/or sex characteristics. The letters commonly stand for gay (‘G’), lesbian (‘L’), bisexual (‘B’), queer (‘Q’), transgender (‘T’) and/or intersex (‘I’). Over time, the acronym has been expanded in some of its usages to include other letters or the plus symbol (‘+’). This is because the acronym does not comprehensively encompass every identity or experience relating to sexuality or gender, which is why additional letters denoting other identities may be added to the acronym, or the ‘+’ is used. The ‘+’ is an inclusive way to denote the existence of additional identities, and ensure that gender non-binary, pansexual or other people who identify using terms that are less commonly used, are adequately captured by the acronym.

2. This case raises important questions about the scope of the ‘public benevolent institution’ concept. The complexity of the question is reflected in the fact the Tribunal has delivered a split decision in this case. We have had the advantage of reading in draft the reasons for decision of SM O’Connell. We agree the outcome of the case turns on the following questions which assist us in what is ultimately a process of characterisation:

   a)whether LGBTIQ+ people in Australia are susceptible to and/or experience distress such as to be persons in need of benevolence in the relevant sense; and

   b)whether EAL is organised or conducted for or promotes the relief of distress experienced by LGBTIQ+ people in Australia.

3. We agree with SM O’Connell that people who identify as LGBTIQ+ are capable of being regarded as persons in need of benevolence. We are unable to agree with SM O’Connell on the second issue. Our disagreement is partly attributable to different factual findings we have made about the purpose and activities of EAL between 1 July 2020 and 6 April 2021 (the relevant period). There are also differences in our approach to the interpretation of the expression ‘public benevolent institution’ as it is used in the statute.  We have concluded the decision under review must therefore be affirmed. We explain our reasons in more detail below.

   THE LAW REGULATING PUBLIC BENEVOLENT INSTITUTIONS

4. It will be helpful to understand the statutory framework and the history of the term ‘public benevolent institution’ before embarking on a discussion of EAL and its work.

5. The ACNC Act establishes the Commissioner of the ACNC as the regulator of entities in the charities and not-for-profits sector. As the Guide in s 10-5 of the ACNC Act succinctly explains:

   The Commissioner is responsible for registering entities as not-for-profit entities according to their type and subtypes. Registration with the ACNC is a necessary precondition for access to certain Commonwealth taxation concessions. Registration under this Act may also be a prerequisite for other exemptions, benefits and concessions provided under other Australian laws.

6. Section 20-5 makes clear that registration under the ACNC Act is intended to operate as a gateway that controls access to the taxation and other concessions referred to in s 10-5. The details of the concessions are set out in various taxation statutes which refer to the Commissioner’s determination that a charity is registered with a particular subtype.

7. Section 25-5 of the ACNC Act says an entity will be entitled to be registered as a charity (the type of entity) with a particular sub-type if it meets certain requirements. The table contained in s 25-5(5) sets out 14 different sub-types with the requirements which must be satisfied for each subtype. In 12 of the 14 sub-types, the table refers to the entity having a purpose which falls within the definition of charitable purpose in s 12(1) of the Charities Act 2013 (Cth). One of the subtypes, referred to at item 12 of the table, is an entity with the purpose ‘advancing public debate’. That purpose is referred to in s 12(1)(l) of the Charities Act. EAL is currently registered as a charity with this subtype. Item 14 refers to “public benevolent institution” but does not refer to s 12(1) of the Charities Act. The dispute in these proceedings relates to whether EAL also (or alternatively) answers the description ‘public benevolent institution’.

8. The expression is not defined in the ACNC Act or in the Charities Act, although it is used in the Income Tax Assessment Act 1997 (Cth) (ITAA97) in the provisions conferring taxation concessions on registered charities. A registered charity under the ACNC Act is eligible to be endorsed by the Commissioner of Taxation as being exempt from paying income tax pursuant to Div 50-B of ITAA97. Additional benefits are available to registered public benevolent institutions. The benefits include eligibility for endorsement by the Commissioner of Taxation as a deductible gift recipient (DGR) under Division 30 of ITAA97. DGR status is beneficial because anyone who donates to an entity with DGR status is entitled to claim a tax deduction with respect to the donation.

9. There is no dispute on the evidence that EAL wishes to be registered as a public benevolent institution in order to achieve DGR status under Div 30 of ITAA97. But while s 30-45(1) refers to ‘public benevolent institution’ at 4.1.1 of the table of entities that are eligible for endorsement, the expression is defined in s 995.1 with reference to the ACNC Act. It follows one must refer to the taxing statutes to identify the benefits which may attach to public benevolent institutions, but those statutes do not directly assist in the interpretation of the term as it is used in the ACNC Act.

10. The expression ‘public benevolent institution’ has a long history. It made its first appearance in amendments to the Estate Duty Assessment Act 1914 that were made following the litigation in Chesterman v Federal Commissioner of Taxation (1923) 19 CLR 224; (1925) 37 CLR 317. When Chesterman was decided, the Estate Duty Assessment Act referred to ‘public charitable institutions’. The High Court concluded that expression should “be understood in its popular sense” rather than in some narrow, technical legal sense. To this end, Isaacs J quoted (at 231) the dissenting judgment of Lord Herschell (with whom Lord Watson concurred) in Special Commissioners of Income Tax v Pemsel [1891] AC 531. Lord Herschell opined in Pemsel (at 572):

    the popular conception of a charitable purpose covers the relief of any form of necessity, destitution, or helplessness which excites the compassion or sympathy of men, and so appeals to their benevolence for relief.

11. Isaacs J went on to explain in Chesterman (at 231):

    I take "charitable" to cover all that Lord Herschell includes, and to comprise benevolent assistance in aid of physical, mental, and even spiritual, progress for the benefit of those whose means are otherwise insufficient for the purpose. But I exclude the idea that is involved in the technical meaning of "charity," that except in trusts directly for the relief of "poverty" the distinction between rich and poor has no relevance.

12. The High Court’s decision in Chesterman was overturned on appeal to the Privy Council. The Board concluded the reference to ‘charitable’ in the legislation was to be interpreted according to the technical or legal meaning discussed by the majority in Pemsel (at 320). Counterintuitively, that technical interpretation had the effect of broadening the eligibility of various charities for tax concessions that the Commissioner of Taxation had argued were intended to be reserved for charities with a particular mission.

13. The Privy Council’s decision in Chesterman was not welcomed. In Young Men’s Christian Association of Melbourne v Federal Commissioner of Taxation [1926] HCA 2; (1926) 37 CLR 351, Isaacs J referred to a need for legislative change to the expression to eliminate confusion (at 359). The parliament responded. The Estate Duty Assessment Act and the Income Tax Assessment Act 1915 were amended in 1928 to restrict the relevant taxation concessions to a new category of organisation called ‘public benevolent institutions’.

14. The High Court discussed the new language in the Estate Duty Assessment Act in Perpetual Trustee Company Ltd v Federal Commissioner of Taxation [1931] HCA 20; (1931) 45 CLR 224.. The Court was required to decide whether the Royal Naval House (an accommodation house provided for the lower ranks of sailors in the navy) qualified as a public benevolent institution. The High Court acknowledged the “composite” term was inserted into the legislation as a result of the Privy Council decision in Chesterman to avoid technical legal difficulties. As Starke J explained (at 231-232):

    It cannot be said that this expression has any technical legal sense, and therefore it is to be understood in the sense in which it is commonly used in the English language. There is no definition in the Act of the composite expression, nor is it to be found in any dictionary.

15. The judgments in Perpetual Trustees focussed on the word ‘benevolent’ (or ‘benevolence’) since there was no doubt the institution had an appropriately public dimension. (There is no dispute that EAL is an institution with a public dimension.) Starke J said (at 232) a public benevolent institution was “organised for the relief of poverty, sickness, destitution or helplessness”. Dixon J referred (at 233-4) to an organisation that “promotes the relief of poverty, distress, suffering or misfortune”. Evatt J said such organisations “give relief freely to those who are in need of it and who are unable to care for themselves, such as the poor, the sick, the aged, and the young” (at 235) who might be regarded as “the object…of compassion” (at 236). Starke, Dixon and Evatt JJ ultimately concluded the Royal Naval House was not a public benevolent institution because, as Evatt J explained (at 236), the House was more in the nature of a social institution that provided services to its members as a gesture of hospitality.

16. The High Court returned to the ‘public benevolent institution’ concept in two cases decided on the same day in 1942. The decision in Maughan v Federal Commission of Taxation [1942] HCA 32; (1942) 66 CLR 388 is directly relevant for present purposes. (The second case, Lemm v Federal Commissioner of Taxation [1942] HCA 31; (1942) 66 CLR 399 only dealt incidentally with the concept.) In Maughan, the High Court considered whether the Boys Brigade, Inc was a public benevolent institution. The Brigade provided social, physical and educational facilities for boys living in disadvantaged areas. As Williams J explained (at 397), the Brigade:

    …provides free of charge facilities for the boys of these poor districts which their more fortunate brothers obtain in their own homes. This keeps them off the streets, provides intelligent occupation for their leisure hours, and generally contributes to their physical, mental and moral well-being and improvement. 

17. His Honour summarised the effect of the Court’s earlier decision in Perpetual Trustee, saying (at 397) the expression ‘public benevolent institution’ “connotes the relief of poverty, suffering, distress or misfortune”. Williams J was satisfied the Brigade qualified as a public benevolent institution when one had regard to the purpose of the entity and its activities. Interestingly, the decision makes clear ‘the relief of distress’ might extend to activities that have a prophylactic effect. (We say more about that below.)

18. While the expression has a lengthy history, its meaning in the ACNC Act is not frozen in time so that it is inevitably defined the same way as it was in a different statute in 1931 or 1942. As Edmonds, Pagone and Wigney JJ explained in Commissioner of Taxation v The Hunger Project Australia [2014] FCAFC 69 at [38]:

    Whilst past judicial statements concerning the ordinary meaning of a word or expression can often assist in divining the meaning of the word or expression, the common understanding of the meaning of an expression may change over time depending on the particular expression in question. When the question is whether a particular institution is a public benevolent institution, the answer depends on the common or ordinary understanding of the expression at the relevant time. The question is not to be approached as a legal question to be dealt with by the mechanical application of past authority, irrespective of the present current understanding of the expression in the currently spoken English language: Ambulance Service (NSW) v Deputy Commissioner of Taxation [2002] FCA 1023; (2002) 50 ATR 496 at [40]-[42]…

19. Consistent with that observation, the understanding of benevolence has evolved over the years – perhaps because the role of charities has evolved in response to the expanding scope of government and the emergence of the welfare state which addresses many of the needs that were formerly met by charities, churches and friendly societies.

20. The Tribunal grappled with the public benevolent institution concept most recently in Global Citizen and Commissioner of the Australian Charities and Not-for profits Commission [2021] AATA 3313. The Global Citizen organisation was devoted to addressing the consequences of poverty by working to arrange funding for a range of projects, including vaccination programs designed to prevent disease. The organisation was not directly involved in delivering any services: it did not raise or distribute money or deliver programs. It played a facilitative role as part of a loose network of organisations like major charities and philanthropists. Global Citizen necessarily engaged extensively with government and used public campaigning in the course of its advocacy and lobbying work to achieve the network’s goals. (The Full Court’s decision in The Hunger Project confirmed a public benevolent institution did not have to play a direct and immediate role in providing the relief, although as we shall see there are limits to how far removed the entity may be from the delivery of the relief.) The Tribunal was satisfied (a) Global Citizen’s activities addressed distress which aroused a widespread benevolent response and (b) the role of Global Citizen in addressing that distress was sufficiently direct. The Tribunal concluded the modus operandi of the entity (while not irrelevant) was less important than the classically benevolent ends for which the organisation was established, and for which it was clearly working. It was found to be eligible to be registered as a public benevolent institution.

21. The decision in Global Citizen was met with excited commentary that suggested it gave charities the ‘green light’ to participate in politics, but that misunderstands what was decided. The decision was ultimately a straight-forward contemporary application of the concept of benevolence – the provision of assistance and relief to those in distress and in need of benevolence – that was first discussed in Perpetual Trustees in light of authorities like The Hunger Project which make clear that an organisation might be considered to be benevolent even though it is not itself immediately and directly involved in the provision of aid to the distressed.

    ARE PERSONS IDENTIFYING AS LGBTQI+ EXPERIENCING DISTRESS AND IN NEED OF BENEVOLENCE?

1. That brings us to the first of the two principal questions we must answer. EAL provided us with reports and oral testimony from two well credentialed academic experts that opined on the nature of the distress that might be experienced by persons who identified as LGBTQI+ which is said to give rise to a need for benevolence.

2. The first report was provided by Professor Adam Bourne, an academic specialising in public health and the director of the Australian Research Centre in Sex, Health and Society at La Trobe University. Professor Bourne has expertise in LGBTQI+ health and well-being, with a focus on substance abuse, mental and sexual health, and family violence. His report of 9 February 2022 (exhibit 1 at [3.1]) explained:

   There is a large body of both Australian and international literature that reports on distress experienced by LGBTIQ+ people and which is associated with their sexuality or gender diversity. This is evident with respect to poor mental health outcomes, increased risk of suicidality, homelessness and housing insecurity, and problematic alcohol or other drug use, all of which are reported at levels higher than observed among the general population of Australia. There is a strong association between the reporting of distress and the experience of being stigmatised, discriminated against, or verbally, physically or sexually abused or assaulted on the basis of gender diversity or sexuality.

3. Professor Bourne referred to survey evidence which confirmed LGBTQI+ youth experienced higher rates of abuse, sexual assault and other forms of anti-social action, explaining (exhibit 1 at [6.1]):

   LGBTIQ+ people in Australia experience distress in a variety of forms, including but not limited to increased suicidality, homelessness and housing insecurity and problematic alcohol and other drug use; (2) this distress is often the result of a hostile, stigmatising or excluding environment; and (3) the actions of Equality Australia have a positive impact on mitigating such distress by seeking to reshape the social, policy and legislative environment for LGBTIQ+ people in ways that promote their acceptance, inclusion and human rights.

4. The oral evidence of Professor Bourne was consistent with his written report. We note the Commissioner did not dispute the evidence before us clearly established many persons who identified as LGBTIQ+ experienced distress as a consequence of discrimination and disadvantage: transcript p 97.

5. The other expert called by EAL was Dr Saan Ecker. Dr Ecker is a psychologist and social scientist. In her expert report (exhibit 5 dated 14 February 2022), Dr Ecker said:

   1.While not all Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer plus (i.e. other diverse sexuality and gender identifications) (LGBTIQ+) people experience mental health challenges, health disparities between LGBTIQ+ samples, relative to general population samples, have been established internationally and in Australia. LGBTIQ+ people face more mental health challenges, particularly depression, anxiety, suicidal ideation, and suicide attempts, than the general population in Australia. Compared to heterosexual/cisgender Australians, LGBTIQ+ Australians are three times more likely to be diagnosed with an anxiety or a depressive disorder in their lifetime (National LGBTI Health Alliance, 2016). LGBTIQ+ people also experience more post-traumatic stress disorder than the general population.

   2.More than half of the participants in the 2019 Australian Private Lives 3 study (PL3:Hill et al., 2021) (PL3 Study), a longitudinal research study collecting data on the experiences of LGBTIQ+ people, self-reported high or very high levels of psychological distress. This compares to 13% of the general population self- reporting high or very high levels of psychological distress (Australian Bureau of Statistics, 2018 as cited in Hill et al., 2021). LGBTIQ+ people who identify as gender diverse are even more likely to report high or very high levels of psychological distress than LGBTIQ+ cisgender men and women (Hill et al., 2021).

   3.Approximately three quarters (73%) of participants in the PL3 Study had been diagnosed with a mental health condition at some point during their lives (Hill et al., 2021), compared to 45% among the general Australian population (Slade et al., 2009, as cited in Hill et al., 2021). Half of the participants in PL3 Study reported a diagnosis of or treatment for a mental health condition in the past 12 months, (Hill et al., 2021) compared to 20% reporting this annually among the general Australian population (Slade et al., 2009, as cited in Hill et al., 2021).

6. Dr Ecker then opined (at [4]):

   There is substantial evidence, tested repeatedly, that the increased psychological distress experienced by LGBTIQ+ people, compared to the general population, is directly and indirectly related to the stress associated with perceived, feared, and actual experiences of discrimination, prejudice and stigma.

7. We have no reason to doubt this evidence. The Commissioner did not make any meaningful challenge or offer an alternative expert perspective. We accept those observations, and the observations to similar effect from Professor Bourne.

8. Dr Ecker went on to observe these deleterious effects were a form of ‘minority stress’. She explained (at [4]) the expression ‘minority distress’:

   …is used to describe the stress unique to members of minorities who are treated differently, or are at risk of being treated differently because of attributes assigned to them by others, and themselves. Daily life as a member of a socially stigmatized group includes chronic stressors such as experiences of discrimination, fear and expectations of rejection, hypervigilance and self-concealment or hiding, internalized negative feelings about the self and efforts to cope (Meyer, 2003a). The minority stress theory has been supported through extensive testing with a range of minority groups (Pascoe & Smart Richman, 2009). Minority stress theory is widely considered to be the only validated theory that can explain mental health disparities between minority populations and the general population.

9. Dr Ecker referred to the role of ‘structural discrimination’ as a cause of minority distress. At [7], she explained the expression ‘structural discrimination’:

   …refers to macro-level conditions (e.g., legal, political and institutional policies) that limit opportunities, resources, power, and well-being of individuals and populations based on specific attributes including but not limited to: race, gender, sexual orientation, gender identity, disability status, socioeconomic status, religion, national origin and immigration status. Intersectionality (i.e., more than one status) results in additive structural discrimination.

10. Dr Ecker went on to explain (at [7]-[8]):

    Structural stigma in the form of laws and policies that institutionalise inequality of LGBTIQ+ people puts the health of LGBTIQ+ people at risk (Hatzenbuehler et al., 2014). Structural stigma reinforces and perpetuates societal-level and interpersonal-level prejudice and discrimination against LGBTIQ+ people and their relationships (Rostosky & Riggle, 2011).

    …Structural discrimination supports anti-LGBTIQ+ sentiment and appears to embolden people who actively oppose LGBTIQ+ rights to undertake discriminatory actions, including verbal and physical attacks. Research on psychosocial outcomes after the Australian postal survey suggest that the effects of structural stigma varied by locale. For instance, LGBTIQ+ Australians who lived in electorates with higher percentages of “No” voters [in the Australian Marriage Law Postal Survey conducted in 2017] reported lower life satisfaction, lower mental health and lower overall health than LGBTIQ+ Australians living in electorates with higher percentages of “Yes” voters (Perales & Todd, 2018).

11. Dr Ecker detailed (at [9]-[10]) a range of discriminatory experiences that flowed from structural discrimination which led to increased distress, “rang[ing] from unfair or non-affirming treatment through to outright abuse or hostility”, including:

    ·social exclusion and verbal abuse and harassment, such as being spat or offensive gestures;

    ·sexual assault and violence due to sexual orientation or gender identity (she observed violence of this nature was “less common but still relatively regular”);

    ·refusal of service, barriers to housing and/or accessing homelessness services, and barriers to a range of opportunities due to sexuality or gender, including employment progression opportunities;

    ·higher rates of family rejection and family violence compared to the general populace; and

    ·barriers to accessing service relating to health and well-being.

12. Dr Ecker also addressed the distress experienced by LGBTQI+ people as a consequence of political campaigns that were perceived as threatening the rights of already stigmatised individuals. She used the same sex marriage debate as an example. She said (at [13]) research established “public debates about the rights of a minority are extremely stressful and dehumanizing for LGBTIQ+ individuals” although she also acknowledged the ultimate legalisation of same sex marriage (as opposed to the public debate which preceded it) has had positive consequences which tended to prove the value of this sort of reform in reducing distress. She explained (at [15]):

    Legal recognition of same sex marriage has led to significant and measurable improvements in LGBTIQ+ wellbeing and mental health. This is beyond the benefits of being able to marry a partner but is also related to the benefits of experiencing less stigma, greater social inclusion and less heteronormative discrimination. Even living in a state that recognises civil marriage was associated with fewer heterosexist experiences and more social inclusion (Ogolsky et al., 2019). The improved mental health and well being following legalisation of marriage, determined by a number of studies (e.g., Buffie, 2011; Drabble et al., 2021), demonstrates that legal recognition of equal rights of LGBTIQ+ people is protective against the negative effects of minority stress.

13. The thrust of all this expert evidence was conveniently summarised by Ms Anna Brown, the chief executive officer of EAL, in her evidence at the hearing. She explained (transcript pp 88-89):

    …there’s a body of work around the social determinants of health which - which I draw upon in that understanding, understanding that these discriminatory laws and policies - and the attitudes and stigma that are not only, I think, created by atmosphere or discriminatory laws, but also can exist in their own right, that these impact and - on the mental health and well-being of LGBTQA+ people.

    …But the idea that when you’re part of a minority group within society that you experience, often on a daily basis, acute rejection from your family, unfair treatment on the basis of your minority identity, a lack of acceptance, a lack of inclusion, coming up against systems and structures and institutions that are built for people that don’t - that aren’t like you. 

    So assumptions are made about the experiences of, you know, you as a customer or as a student or as a worker that you’re heterosexual, that you’re not transgender, you’re not intersex, and that in itself has a cumulative and damaging effect on a person’s sense of self.  And (indistinct) and so a lot of people in our communities it impacts on their mental health as well.

14. We are satisfied Dr Ecker’s unchallenged evidence provides a basis for accepting the existence of minority stress that is caused by structural discrimination that manifests in a range of discriminatory practices and experiences in the lives of many people who identify as LGBTQI+. The Commissioner did not dispute the evidence about the adverse impact of discrimination (and certainly did not introduce any contradictory expert opinion). He did not fully embrace the concept of minority stress given it cannot be said all LGBTIQ+ persons experienced distress and were therefore in need of benevolence because they identified as LGBTQI+. We accept minority stress is not inevitably experienced by every person identifying as LGBTQI+ (or by members of their family and supporters, who Dr Ecker said might also experience vicarious distress at the treatment of LGBTQI+ persons, and who might be the subject of discrimination themselves). We will return to that submission below.

    IS EAL ORGANISED TO PROVIDE ASSISTANCE AND RELIEF TO THOSE IN DISTRESS AND IN NEED OF BENEVOLENCE?

15. Having answered the first question in the affirmative, we now turn to the second question. Answering that question requires us to focus on the nature and purpose of EAL. As a practical matter, that involves an examination of EAL’s aims, how it is organised and what it actually does.

16. EAL is the successor to Australians for Equality Ltd, an organisation established in connection with the marriage equality debate. The focus of that organisation was set out in a statement included in successive financial reports which read:

    The principal activity of the Company is to promote or oppose a change to law, government policy or practice. The principal objective of the Company is to promote change to Australian law to achieve equal marriage rights for same sex couples and to eliminate discrimination on grounds of sexual orientation.

17. After same sex marriage was legalised, the organisation was renamed and relaunched as EAL in December 2018. In May 2020, EAL amended its constitution to reflect its new focus which extended beyond securing marriage equality in Australia. Ms Brown explained in her statement dated 18 February 2022, the new organisation had “a broader remit to alleviate distress of LGBTQI+ people through advocacy and working on law reform in areas identified as priority areas of need”: at [50]. A copy of the amended Constitution which is currently in force and which reflects that fresh focus is reproduced in the ‘T’ documents at T6 p 99. Clause 3 of the Constitution includes the following statement of purpose:

    The purpose of the company is to improve the wellbeing and circumstances of LGBTI People in Australia and their families and children by:

    (a)relieving their distress and disadvantage;

    (b)reducing the prevalence, and relieving the effects, of depression, suicide, anxiety, bullying and homelessness that they experience;

    (c)reducing the stigma, discrimination and homophobia they experience;

    (d)advancing and promoting equality and inclusion; and

    (e)enhancing their actual, and sense of, safety, security and acceptance.

18. This statement of purpose is as expected. But we need to know more about the organisation, its aims and its activities before we can be satisfied it is properly characterised as a public benevolent institution.

19. The organisation’s scope and activities were summarised in a description provided to the Commissioner in connection with the application for registration on 14 August 2020. The document was reproduced in the ‘T’ documents at T8 p 143. The description said EAL provides benevolent relief to LGBTIQ+ people as follows:

    We provide intervention and support (e.g. referrals, legal and other information, positive messages, online/in person events and briefings) to LGBTIQ+ people to alleviate discrimination, distress and disadvantage and generate positivity and connection; we support LGBTIQ+ community organisations to meet the immediate needs of LGBTIQ+ people suffering disadvantage by developing and sharing resources and information on key issues affecting LGBTIQ+ people and engaging in training and capacity building; we convene and resource gatherings of LGBTIQ+ community organisations to build knowledge and share information; we prepare research reports and submissions to assist LGBTIQ+ community organisations to alleviate the distress and disadvantage suffered by LGBTIQ+ people; we gather data on the nature and extent of the distress, disadvantage and inequality experienced by LGBTIQ+ people in order to develop strategies and coordinate responses to address these experiences and conditions; we use our research and legal knowledge to inform and educate government and parliamentarians about programmatic, policy and legal reform to alleviate the discrimination, disadvantage and distress experienced by LGBTIQ+ people and promote inclusion and equality; we build awareness and support for inclusion and equality among industry and mainstream community organisations and the broader community; we convene online and in person events to provide support to LGBTIQ+ people and ease the distress and disadvantage they face; and we inform and educate LGBTIQ+ people and the broader community about current issues and the impact of discrimination, disadvantage and inequality.

20. EAL’s principal witness was its chief executive officer, Ms Brown. She provided two statements (exhibit 21 dated 18 February 2022 and a confidential statement (exhibit 22) dated 1 March 2022) and she gave oral evidence over several days at the hearing. Some of the evidence was given in closed session because the testimony dealt with confidential internal documents and data. Ms Brown’s open statement (exhibit 21) set out her extensive background as a lawyer, activist and advocate for causes that impacted on LGBTQI+ persons. She also recounted a brief history of Australian for Equality Ltd and EAL. She explained she became involved in Australians for Equality because her experience suggested (at [26]):

    …a need for a national LGBTIQ+ organisation to:

    a. assist the LGBTIQ+ community to be in a position to respond to any plebiscite on marriage equality; and

    b. more broadly, seek to eliminate, as far as possible, the discrimination that LGBTIQ+ people faced and which contributed to their distress and disadvantage, via activities that effectively connected and empowered LGBTIQ+ people and which resourced, connected and educated other LGBTIQ+ organisations and the broader community.

21. Ms Brown’s statement described the formal governance and management arrangements of EAL. She recounted how EAL established staff and infrastructure that were appropriate to its new, more wide-ranging mission. She explained how she met with potential donors and stakeholders to enlist support. The Board also adopted what was described as a ‘Campaign decision-making framework policy’ that would help EAL’s leadership prioritise projects and initiatives: at [60]. She also referred to the description of EAL’s activities contained in its annual financial reports since 2018. The most recent iteration of that report, published in January 2022, said EAL’s principal activity was to:

    …provide support to LGBTIQ+ people and agencies supporting LGBTIQ+ people to relieve discrimination and disadvantage suffered by LGBTIQ+ people in Australia and promote equality and inclusion.

22. The organisation’s mission statement (referred to in [110] of Ms Brown’s statement) now provides:

    We create positive legal and social change to ensure LGBTIQ+ people are treated with dignity and respect.

23. Ms Brown explained she is a full-time employee. At [95], she said the other dedicated staff of the organisation were:

    ·An operations coordinator with a background in campaigning and advocacy. (The statement noted that individual had only recently been engaged on a full-time basis although he had worked part-time at EAL since 2020.)

    ·An engagement director, a full-time employee who provided:

    …high level strategic advice and [led] key activities to proactively engage with key external audiences, the LGBTIQ+ community, key partners and stakeholders, government and political decision makers and the wider community.

    ·A digital campaigner, employed on a full-time basis to assist the engagement director. The person in that role had experience working in a similar role in government. They were:

    …responsible for crafting digital actions, persuasive supporter communications and social media content to engage Equality Australia’s growing supporter base and build its brand and credibility.

    ·A legal director, employed on a full-time basis. The current occupant had extensive connections with universities, stakeholder groups and law firms. That individual was also assisted by secondees from law firms. Ms Brown explained:

    The role of the Legal Director is to undertake research and submission writing, take the lead on government relations work as well as Equality Australia’s strategic legal advocacy, for example supporting individuals or developing strategic litigation opportunities.

    ·A development and partnerships manager who assists with fundraising activities and donor relationships. That person is now engaged on a full-time basis although we understand the person in that role has only recently commenced.

    ·A financial controller, engaged on a part-time basis.

    ·A ‘strategic advisor’ who was engaged as a contractor in October 2021 in connection with EAL’s contribution to the Sydney WorldPride Human Rights Conference in March 2023.

1. We note these staff were well-adapted to policy development, campaigning and advocacy work, although there was also a focus on stakeholder management and fund-raising. EAL was able to engage casual and short-term staff as required when necessary to deal with particular projects, and there was an enthusiastic pool of volunteers: at [98]-[99]. Interestingly, Ms Brown pointed out (at [100]) EAL’s capacity to engage with volunteers was “limited because its staff team is very small and overloaded”, although she anticipated that might change over time. 

2. Ms Brown also recounted (at [80]-[81]) EAL’s success in obtaining grant revenue, donations and fee-paid advice in connection with various government and philanthropic projects. These included:

   ·an LGBTIQ+ Audit to identify areas of discrimination related to LGBTIQ+ persons in the ACT’s laws and policies as well as areas for improvement. The audit was completed in 2019;

   ·a legal workshop in April 2021 to bring together legal experts to develop analysis and recommendations regarding the way in which legal or policy decision-making frameworks around intersex medical treatment could be improved in the ACT;

   ·developing a legal model for consultation with community members and clinicians, undertaking an extensive consultation and preparing a listening report on perspectives and issues received, and developing recommendations for reform. That initiative was convened by the Victorian government;

   ·assisting the Australian Communities Foundation Impact Fund in connection with the Fund’s ‘All Schools, Same Rules’ campaign in 2017-2019. The campaign was designed to address discrimination experienced by LGBTQI+ students;

   ·campaigning with respect to the Religious Discrimination Bill in January 2022.

3. In her statement, Ms Brown said (at [117]) EAL had undertaken work and projects in a number of key ‘thematic’ areas. These included:

   a. religious discrimination, including:

   i. narrowing exemptions in anti-discrimination laws that allow religious schools and other organisations to discriminate on the basis of sexual orientation or gender identity;

   ii. responding to calls for laws that allow discrimination based on religious belief or activity against LGBTIQ+ people, often in the guise of protections against religious discrimination or for religious freedom; and

   iii. ending ’conversion’ practices;

   b. the legal recognition of gender, namely law reform that allows trans and gender diverse people to update their gender marker on official identification documentation such as birth certificates without the need for surgery;

   c. ending unnecessary medical interventions on intersex people, particularly infants and children, without personal consent; and

   d. the collection of data on LGBTIQ+ populations in the national census.

4. The work since 2018 was described at [116] of the statement as follows:

   a.devising legal, policy or other solutions that respond to the issues raised by affected individuals or communities within the LGBTIQ+ population;

   b.developing forums and platforms to provide a space for LGBTIQ+ sub-groups to discuss current issues of concern, share information and resources and provide support. For example, Equality Australia is working closely with intersex community members on the issue of medical treatment for intersex people;

   c.supporting LGBTIQ+ individuals preparing for or undertaking litigation on LGBTIQ+ policy issues. Equality Australia supports this work through its own legal and policy expertise, assistance with media liaison, and referrals to pro bono legal assistance, community services and psychological care (when needed);

   d.working in consultation with the relevant LGBTIQ+ community or communities, Equality Australia uses its expertise, and that of others in its network, to co-design and implement strategies to address particular issues facing LGBTIQ+ communities. … These engagements are often specific to a particular issue or campaign [eg, the Religious Discrimination Bill];

   e.developing content and using Equality Australia’s platforms to amplify the voices of LGBTIQ+ people so that the broader community understands the issues that need to be addressed and are encouraged to take steps to support LGBTIQ+ people. Through this communication and consultation, Equality Australia shares personal stories, provides information regarding current issues faced by LGBTIQ+ people, celebrates and commemorates days of solidarity, pride, remembrance and visibility, and shares opportunities for LGBTIQ+ people to engage with or participate in activities relating to these issues such as surveys, petitions, letters and attending events. In this way, Equality Australia creates a safe space for LGBTIQ+ people and allies to come together and discuss issues common to them as members of the LGBTIQ+ community, and also builds awareness and support for inclusion and equality among industry, mainstream community organisations and the broader community. For example, Equality Australia raises awareness and delivers presentations and briefings on key issues facing LGBTIQ+ people to mainstream community organisations, business, industry and government;

   f.preparing research reports, submissions and briefing materials on current issues facing LGBTIQ+ people and shares these resources with its network of LGBTIQ+ organisations, to build support and connection between LGBTIQ+ people and to assist network organisations more effectively undertake their own activities. For example, in July 2020, Equality Australia commissioned a YouGov poll in relation to support among Australians for transgender Australia. The poll sampled 1,026 Australians aged 18 years and over. The poll showed overwhelming support from Australians for transgender Australians for trans equality, which was then used by Equality Australia to push for reforms to laws and institutions in Australia including access to gender affirming healthcare, access to ID documents and antidiscrimination laws; and

   g.conducting surveys and gathering data to better understand the nature and extent of the distress, disadvantage and inequality faced by LGBTIQ+ people. This allows Equality Australia to develop strategies and coordinated responses to address identified issues. Such responses often involve informing and educating governments and members of parliament about reforms needed to alleviate discrimination, disadvantage, and distress of LGBTIQ+ people and building awareness and support for inclusion and equality among industry, mainstream community organisations and the broader community:…

5. The balance of Ms Brown’s statement sets out detailed descriptions of the activities undertaken in the thematic areas, although she pointed out there were ad hoc projects and activities. Importantly, at [200], she referred to EAL providing “direct support to individual LGBTQI+ people and representatives of LGBTQI+ organisations (many of whom are performing voluntary or unpaid roles”.  She explained (at [201]):

   The kind and degree of support provided varies based on the needs of each individual and whether the issue raises a systemic issue relevant to one of our key areas of work. The support can include:

   (a)provision of legal information, policy resources and other reference materials;

   (b)direct guidance and support with submissions and appearances before parliamentary inquiries, communications with members of parliament, or media appearances; and

   (c)referrals to legal service providers, LGBTIQ+ community service providers, and other specific support services such as counselling services.

6. Ms Brown made it clear the extent of the support provided to individuals and organisations varies, and is dependent on whether “the topic of concern aligns with an issue area that Equality Australia is working on more deeply…”: at [203].

7. There was also a discussion of EAL’s activities in response to the Covid pandemic and its impact on LGBTQI+ individuals and businesses. The initiatives included:

   ·conducting a national survey of LGBTQI+ people regarding how they were impacted by Covid and lockdown policies;

   ·hosting a ‘roundtable’ of 42 different LGBTQI+ and allied organisations to share information about Covid resources and connect in the face of lockdowns;

   ·hosting the ‘Queer Love-In’ on 2 May 2020. The Love-in was an online community event on EAL’s Facebook page featuring LGBTQI+ artists who were financially affected by Covid;

   ·establishing the National LGBTQI+ covid directory as “a searchable database of services, community groups, and cultural activities for LGBTQI+ Australians” during the lockdowns;

   ·advocacy in the form of submissions to a parliamentary inquiry on the impact of Covid on LGBTQI+ persons.

8. Other initiatives included the establishment of a fellowship program for LGBTQI+ community members, although Ms Brown acknowledged in her statement (at [224]) the program had not yet been launched because of funding issues. Ms Brown also referred to EAL’s role as:

   …the lead community partner… coordinating a small consortium of LGBTIQ+ organisations and experts, in advising the organisers for Sydney WorldPride 2023 on its flagship Human Rights Conference including community engagement on proposed topics and outcomes and curating topics for discussion.

9. The activities described in the statement are reasonably wide-ranging, although many – arguably most of the activities – described have the distinct flavour of advocacy, campaigning and education. That is unsurprising given Ms Brown explained the activities were shaped to a significant extent by the strategic priorities recorded in the campaign decision-making framework, the mission statement and the financial reports from which we have already quoted. Against this, we note the application form EAL filed in connection with the registration process (exhibit T-T8 at pp 144-145) included an estimate of the time allocated to its various activities. The document estimated:

   ·the events program accounted for 10%;

   ·the fellowship program accounted 13%;

   ·LGBTIQ+ Network accounted for 15%;

   ·referrals and support accounted for 20%;

   ·the communications program accounted for 17%;

   ·research and education accounted for 15%; and

   ·COVID-19 related activities accounted for 10%.

10. That estimate of time hints at an organisation engaging in a wider scope of activities. We note that form did not explicitly describe efforts to change the law and societal practices through advocacy, even though that seemed to be the thrust of EAL’s activities.

11. Our impression about the general thrust of EAL’s activities was reinforced by the cross-examination of Ms Brown. We should make clear we are satisfied Ms Brown was an articulate, honest and impressive witness. She did her best to assist the Tribunal. It was obvious she saw there was a direct causal relationship between discriminatory laws and insensitive practices on the one hand and bad health and social outcomes on the other. She believed a focus on those laws and practices which cause discrimination and stigma would address, amongst other things, “scandalously high rates of suicidality, self-harm [and] depression” amongst LBTIQ+ individuals: transcript at p 97. Overall, her evidence made clear she believed EAL was organised to pursue changes to those laws and practices.

12. In cross-examination, Ms Brown was asked how she would characterise EAL. She referred to EAL’s strategic plan (’T’ Documents at p 150) which identified priorities including becoming (at ‘T’ Documents p 152):

    Recognised as a leading national LGBTIQ+ support agency by decision makers, government and the media.  

13. Ms Brown went on to suggest (transcript at p 114) EAL was:

    …a campaigning organisation.  We provide support.  We work on policy.  So all of these things that we do I think are accurate, but there’s no one word that sums up everything that we do which is why I generally say we’re a national LGBTIQ+ organisation working towards equality. 

14. Later in the cross-examination, Ms Brown said (transcript at p 121):

    Effectively we’re seeking to end the discrimination faced by LGBTI people at a legal and social level.  And by doing so and having them play a role in achieving that goal, we also are able to empower and - empower them and support them to be part of that change.

15. Ms Brown also referred to EAL becoming a “face, a voice for a particular community”: transcript at p 116. When asked what she meant by the word “voice”, she explained (transcript at p 117):

    By that expression, I mean the fact that we work deeply and broadly with members of the LGBTI communities, in the sense that we have supporters that are members of the LGBTI community that feel part of our organisation.  And through gathering their concerns and analysing them and their stories and capturing them, we can develop a better idea about the issues - the current issues facing LGBTI people.  And then take those issues and educate the broader public about, for instance, the impact of discrimination and discriminatory laws.  And then also educate decision makers and develop policy solutions to the problems facing our community in partnership with other LGBTI community organisations, for instance, that our part of our national network or around specific subpopulations like intersex people.  We’ve worked deeply with Intersex Human Rights Australia, for example.  So in that way, we seek to I guess assist LGBTI people to be part of the process of changing laws, policies, attitudes that will improve the material circumstances but also the social conditions of the world in which they live.

16. These passages describing EAL’s activities highlight the centrality of advocacy, education and policy development in EAL’s work. Ms Brown argued that work “benefits all LGBTI people in Australia” which might include up to one million individuals. She explained (transcript at p 118) EAL worked and provided support at different levels. Sometimes the support was directed to individuals in connection with particular cases, but:

    …there’s that level of support and then there’s also the support that we provide to particular population groups, trans and gender diverse people, intersex people.  But then there’s some - for instance, if the census - if the work that we do on the census is successful then all LGBTIQ+ people in Australia will benefit from that work because we will have hopefully succeeded in effecting a change to census collection practices and asking questions about LGBTI people that enable government to better understand their needs and develop policies and funding in a way that reflects the population spread across the country and demographic data that’s available to the government.

17. The discussion of EAL’s focus on the census was illustrative of EAL’s high-level strategic approach to issues of concern to LGBTQI+ persons. Ms Brown pointed out (transcript at p 119):

    …it’s really difficult trying to persuade a government to - of a particular problem and to even understand the social problem when you don’t have the data, so it’s a really important reform that we hope that we can achieve.  A lot of the work that we do - well, I would hope that governments want to support LGBTIQ+ people because they believe in meeting the needs of everyone in the community, rather than being a greater percentage of the voting population, for example.  I certainly think that accurate data on our population is essential and important to better policymaking that meets the needs of our communities.

18. Ms Brown’s references to providing support to individual members of the LGBTQI+ community in the passages we have quoted must be understood in context. It was clear those support activities focused on individuals who “experienced discrimination or injustice” that fell within the priority areas of EAL: transcript at pp 101-102. Ms Brown provided examples of EAL supporting persons who have experienced discrimination in the workplace and trans and gender diverse persons who have faced discrimination, but she said this support was integrated within the legal, advocacy and policy work being undertaken by EAL: transcript at pp 102-103. When Ms Brown spoke of examples where EAL had supported transgender youth and their families who encountered barriers when accessing gender affirming healthcare, she pointed out (transcript at p 107) EAL’s legal director was:

    …on the look-out for opportunities to act for families in cases where a court - you know, the potential strategic litigation opportunities essentially…

19. The targeting of individual support to cases which serve EAL’s agenda was illustrated by its approach to the debate over proposed religious discrimination laws. (Ms Brown confirmed in cross-examination during the private session that EAL had expended a good deal of effort on this initiative: transcript at p 30.) Ms Brown referred to individuals with whom EAL had worked who experienced discrimination at religious educational institutions. She explained (transcript at p 130):

    Now, one of our key priorities is to ensure or to reform the law so that religious organisations cannot sack a teacher because they’ve become married to their same-sex partner or because they believe that being LGBTIQ+ people is - being LGBTIQ+ is okay. So by talking about the case publicly, we increase public awareness about the discrimination that’s faced by LGBTI people and we increase awareness. We can talk to real life examples because when we speak to politicians about problems, our current law or proposed laws, often they might say, well, who suffers as a result because I don’t see any young people at school being kicked out and they’re always (indistinct).  And the people who experience this distress and unfair treatment - well, some of the people we work with are very committed to communicating their injustice and changing the world so that that injustice doesn’t happen to other members of the community.  And so we provide them with a pathway to talk to politicians and decision-makers to share their story and in doing so building the case for change.

20. After making that point, the following exchange ensued between Ms Brown and Dr Jaques KC, counsel for the Commissioner:

    Dr Jaques:  The ability to use a legal case to build the case for change is one of the factors you take into account in your litigation strategy when you decide whether or not to support that case.  That’s correct?

    Ms Brown: Yes, correct.

21. That answer was consistent with an earlier answer Ms Brown gave in response to a question from the bench about the level of support provided to individuals. She explained the efforts of EAL in many of those individual interactions were concerned with “trying to generate awareness of the broader systemic issues through the experiences of these individuals”: transcript at p 103.

22. Ms Brown spoke about EAL’s role in public debates over issues like transgender and intersex health care, especially where children were involved. She referred to assistance EAL provided to persons wishing to tell their story. One of those cases involved a young intersex person whom we shall refer to as ‘N’. Ms Brown explained one of EAL’s staff (transcript at p 103):

    …spent time with the family as well because we really wanted the family to be supported, but also for the story to land in the best possible way.  And so that means selecting a journalist very carefully and working with that journalist very closely, providing the journalist with a lot of background and access to medical or other experts that can explain the issues at play.  Access to briefing them on legal issues, and then sharing that story as widely as we can, and building awareness amongst broader community about those issues.  And then there’s another piece which is engaging our supporters to also share that story and to encourage them to individually take action to be part of our supporting [‘N’] and people like [‘N’], and address this very, you know, I think egregious issue in our community of these procedures performed on young people before they can consent.

1. It was clear from Ms Brown’s evidence that EAL saw it made an important contribution when it addressed the issue using the skills at its disposal rather than simply providing direct support to individuals. Which is not to say EAL never provided direct support, only that the support tended to be directed towards achieving the strategic policy agenda. A person requiring more direct support was usually offered a referral to a specialist service or support group: transcript at p 129. In respect of transgender health care, she further explained (transcript at p 108):

   …that’s what we try and do is inject - work with medical professionals and people defending transgender young children and their families, and transgender people themselves, to as with our legal background to try and remedy this issue in the best way we can.

2. EAL saw part of its role lay in promoting community engagement and activism in relation to LGBTQI+ issues. Referring to EAL’s ‘supporter database’, Ms Brown explained (transcript at p 126):

   ... our model is to have this where we’re a community-based organisation, so the people that are part of that community are at the heart of what we do and are consulted about our priorities.  Their stories and experiences inform the issues that we work on and help - and their actions help achieve the change we’re trying to see.  So they’re very much a part of our work which is - that’s the big difference between Equality Australia and the Human Rights Law Centre, for example.  So through our work LGBTI people are involved in being part of the change which in itself, I think, is a benefit for the community to develop that sense of community and belonging.  They might share, you know, a story with their friends, they might email their MP about their concerns and the impact that a piece of legislation might have on them for worse or for better.  And in that way we involve the people at the heart of our organisation, the people in - that are members of our community in achieving our vision and mission.

3. The evidence before us clearly established EAL focused on advocacy (especially advocacy of law reform and social change) as well as policy development at the relevant time. But the oral evidence also established the other activities and projects referred to in EAL’s strategic plan (‘T’ Documents 8.1 at pdf 150) and some of the other documents were still at a very early stage of development. They were nascent, or aspirational.

4. The limited scope of EAL’s activities is evident in the staffing profile of the organisation. Dr Jaques asked Ms Brown in cross-examination about the makeup of the staff at EAL. Ms Brown had identified the staff in her statement. The following exchange ensued (transcript at 128):

   Dr Jaques: Now, in paragraph 95 of your statement, you run through and identify each of the staff members of Equality Australia.  Now, certainly from my reading of their skills and background, it seems that the skills and background of every single one of them is campaigning, legal or lobbying of some nature.  Would that be a fair comment?  Whether digital campaigning, advocacy, lobbying, media and government relations, legal advocacy?

   Ms Brown: That certainly describes the skills that - skills that our team possess, but not comprehensively.  So Ghassan Kassisieh for example would - I would describe the policy expertise that we have in - in his role - and we’ve just recruited a junior legal policy advisor to support him  and also my experience, it’s beyond - it’s legal policy but it’s also actually LGBTI policy.  So government departments, for instance - we’re lucky enough that there’s an equality or LGBTI (indistinct) within a government advising on LGBTI community and policy issues which there is in Victoria because we had an equality minister responsible for LGBTI communities.  And he has a department.  Those people in that department have expertise in LGBTIQ+ policy issues which range - it’s - they may come from different disciplinary backgrounds.  Social sciences or health or legal and human rights. 

5. Ms Brown agreed that nobody on the current staff of EAL had a background in health, psychology or social work. She pointed out there were other specialist organisations that could meet those needs: transcript at pp 128-9. The gap that EAL saw for itself related to legal and human rights expertise, and communications support: transcript at p 129.

6. The composition of EAL’s staff is significant in this regard. The staffing profile was clearly geared towards advocacy and policy development work. We have already identified the skill sets and roles of individual staff members. The description of the staff on EAL’s website tends to confirm our impression. It refers to:

   Our small but passionate team is made up of dedicated law, policy and advocacy experts who have a long history of working for marriage equality and LGBATIQ+ rights.

7. Ms Brown agreed that description accurately reflected the expertise of the staff and the work they undertook: transcript at pp 131-132. There was limited capacity within the organisation to undertake other activities and projects which provided direct support to LGBTQI+ persons who might need assistance of a more practical kind.

8. One of the projects mentioned in the materials was EAL’s contribution to a human rights conference that was to be conducted in connection with the Sydney WorldPride event in March 2023. WorldPride was scheduled to coincide with the annual Sydney Gay and Lesbian Mardi Gras. We have already noted EAL had tendered to be one of the organisers of the conference. As part of its work, it assembled a coalition of other groups: transcript at p 134. There was some discussion of what was involved in organising the conference during a closed portion of the hearing. We accept EAL was required to coordinate ‘community partners’ who were engaged as sub-contractors. We also accept the conference had the potential to draw attention to issues of concern to LGBTQI+ people. In that sense, the conference fitted in with EAL’s focus on advocacy and education. 

9. The extent and focus of the fellowship program was also clarified in the oral evidence. Ms Brown said it was designed to give young people the skills – such as media and presentation skills – to become involved in LGBTQI+ issues. The program was also designed to build a network and contacts: transcript at p 111. But Ms Brown’s evidence confirmed the fellowship program is at an embryonic stage of development. We were told an initial grant had been awarded in the weeks before the hearing to fund what would become known as a community development and capacity building project focusing on transgender persons: transcript at pp 111-112. EAL was working on an implementation plan at the time of the hearing: second confidential transcript at p 34. We note that the fellowship project fits comfortably with EAL’s focus on advocacy and education in any event.

10. There was also evidence given in the private session about the establishment of a national network. (The private session dealt with evidence about EAL’s operations that might be commercially sensitive.) The national network was intended to bring together a wide range of groups to share information and resources about current issues that impacted LGBTIQ+ persons, and to discuss strategies for addressing those issues. Members of the network would meet occasionally using video conferencing facilities. It was apparent that the advent of the Covid pandemic might have been an obstacle to the development of the national network to the extent it made meetings in person more complicated – although Ms Brown said the network also provided a forum for discussing the impact of Covid on LGBTQI+ businesses and individuals. Ms Brown confirmed the network met occasionally. The operation and scope of the network appeared to us to be summed up in the following exchange during cross-examination during the private session of the hearing (second confidential transcript at p 9):

    Dr Jaques: Would it be correct to say that you have the ability to tap into the entities that are members of your national network and thereby gain information from them about current issues.  And their thoughts on current issues?

    Ms Brown: Yeah, absolutely.  And likewise we relay information to those groups, we’re very valuable source of information and resources for those organisations.

11. The evidence establishes the national network did not have a formal structure at the relevant time. Ms Brown suggested that might come in due course once EAL developed more “bandwidth”: second confidential transcript at p 12. We accept the development of the network may have been compromised by the onset of Covid, but its membership appeared to be fluid and meetings were convened on an ad hoc basis to discuss issues as they arose. In any event, this initiative was apparently used to further EAL’s advocacy and educative functions. There is limited evidence of the network being used to provide support to LGBTQI+ persons in other respects.

12. Ms Brown also spoke about the efforts of EAL to support the LGBTQI+ community in the face of Covid. One of the initiatives referred to in the evidence was a national directory of resources that could be accessed by the community. It was described in the materials produced in cross-examination as the ‘Australian LGBTIQ+ Covid Directory’: second confidential transcript at p 22. Ms Brown’s evidence established this was a modest, informal initiative: it was an excel spreadsheet on EAL’s website that listed services which might be available, and which invited members of the community to add services which they thought might be of assistance. The directory was neither comprehensive nor systematically maintained and promoted: second confidential transcript at pp 18-19.

13. In summary, we are satisfied the evidence, when viewed as a whole, confirms EAL was focused on advocacy in furtherance of its goal of changing laws and social practices that were injurious to LGBTQI+ persons. In doing so, it was plainly motivated by a desire to address the distress these laws and practices caused to many members of that community. EAL engaged in information gathering, networking activities and outreach to that end, and it played a modest role in the relevant period in staging events and hosting interactions with that end in mind. We are not satisfied it routinely provides support directly to individuals or groups beyond providing referrals, information exchanges and opportunities for connection except where that support was incidental to other activities that were directed to achievement of its primary mission. Moreover, EAL did not have access to the financial or human resources or expertise required to play a wider role beyond that which we have identified. We note that conclusion is broadly consistent with the message contained in important internal documents, including:

    ·     a powerpoint presentation that was provided to donors which focuses on discrimination (Donor presentation 2019 – document 21 provided in cross-examination);

    ·     successive iterations of the Strategic Plan (‘T’ Document 8.1 at pdf 150, and pp 5-6 in annexure AB2 to the confidential statement of Ms Brown dated 29 July 2022); and

    ·     the memo to the EAL board dated 24 January 2020 under the heading ‘Campaign Decision-Making Framework’ that was contained in Ms Brown’s second confidential statement that was the subject of cross-examination in a closed session (Annexure AB2 pp 7-10 in the confidential statement of Ms Brown dated 29 July 2022).

    CAN EAL BE CHARACTERISED AS A PUBLIC BENEVOLENT INSTITUTION?

14. We have made findings of fact that (a) LBGBTQI+ persons are capable of being regarded as persons experiencing distress that arouse feelings of compassion and benevolence as a result of minority stress caused by, amongst other things, structural discrimination in the form of discriminatory laws, policies and practices; and (b) EAL was organised to address that distress through a program of advocacy (especially legal advocacy), education and campaigning to achieve changes in those laws, social practices and administrative policies. While we accept EAL may have engaged in other activities during the period under review which did not of themselves amount to advocacy, those activities were typically incidental to the aims we have identified. In any event, those activities were not sufficiently extensive to impact our findings as to purpose. It follows we do not accept the estimate of time spent on different activities that was proffered in connection with the application (referred to above at [53]).

15. To be clear, we accept the expert and other evidence to the effect that structural discrimination can result in distress for LGBTQI+ persons. We also accept law reform (for example, achieving marriage equality under the law) may, of itself, relieve distress of LGBTQI+ persons – both because it removes direct disadvantage occasioned by the discriminatory law or practice, and because reform destigmatizes and includes LGBTQI+ persons. Ms Batrouney KC, who appeared for EAL at the hearing, says that is enough for EAL to be characterised as a public benevolent institution: transcript for 3 August 2022 at p 32. (Ms Batrouney insisted, as a factual matter, the Tribunal could be satisfied EAL was involved in a wider range of activities than we have found, but it was notable EAL’s submissions assumed its advocacy, education and campaigning activities were sufficient on their own to provide a basis for the finding EAL was a public benevolent institution.)

16. The Commissioner argued EAL was disqualified from being regarded as a public benevolent institution because it engaged in politics. We do not think it is helpful to frame the distinction we are required to make so definitively, not least because (as the Tribunal recognised in Global Citizen) positive engagement with government is often a necessary feature of charitable work. Charities are often required to work with government and must compete for its attention. And yet there is something to the Commissioner’s concerns.

17. The expression ‘public benevolent institution’ is purposely – in some respects, frustratingly – undefined. It does not have settled dimensions, and the concept certainly does not lend itself to a reductionist analysis in which the decision-maker treats a particular activity as qualifying or disqualifying. We do not agree with the Commissioner that a public benevolent institution is inevitably limited to providing actual practical relief from (or mitigation of) a harm or distress that has already become manifest. The High Court’s decision in Maughan and the Tribunal’s decision in Global Citizen (amongst others) confirm activities that are inherently prophylactic in nature can still be regarded as the stuff of a public benevolent institution.

18. What is required is a holistic analysis of the purpose and activities of the organisation to determine whether it can properly be characterised as benevolent. In doing that, it is necessary to establish a sufficiency of connection between the means employed and the benevolent ends.

19. The need to establish this proximity of means and ends is not affected by the value or attraction of the benevolent ends in question. In submissions, Ms Batrouney referred to authorities from overseas (transcript of 3 August 2022 at p 15-6) that suggested we should focus on the value of the ends in question, as if the worthiness of the objective might count for more in our deliberations. We disagree, both because it distracts us from the characterisation process required of us, but also because it invites the Tribunal to form a subjective view of the value or weight to be given to particular causes. That is not our role.

20. We have already acknowledged an organisation need not be directly involved in the provision of relief or aid. An entity does not require a ‘presence on the ground’ when addressing distress. The entity may play a role as part of a larger process of funding, administering and delivering that assistance: see The Hunger Project and Global Citizen. But there must still be a sufficiency of connection between the activities of the entity and the benevolent ends it seeks to achieve. At some point, even well intentioned and ultimately beneficial activities might not be sufficiently proximate to the benevolent ends. The relief provided will simply be too indirect.

21. The issue of whether advocacy, education and campaigning directed towards law reform and social change can amount to benevolent relief in the relevant sense has not been squarely addressed by the courts or Tribunal, but it was discussed in Australians for Indigenous Constitutional Recognition v Commissioner for the Australian Charities and Not-for-profits Commission [2021] FCA 435. In that case, an entity with similar aims to EAL had sought a maximum costs order under the Federal Court Rules. The interlocutory application was made in connection with a challenge to the Commissioner’s decision to deny the entity registration as a public benevolent institution. After briefly reflecting on the nature of a public benevolent institution, Thawley J observed (at [25]-[26]):

    The applicant is concerned with advancing education, promoting reconciliation, mutual respect and tolerance between groups of individuals in Australia; and advancing public debate, for the purpose of achieving self-determination and recognition in the Australian Constitution for Indigenous Australians. The money which the applicant hopes to raise by securing registration as a [public benevolent institution] would be directed to such matters as securing constitutional recognition for Indigenous Australians. It would not be distributed directly (or sufficiently directly) to Indigenous Australians. It would be used with the hope of ultimately relieving distress by seeking to secure constitutional recognition or by providing Indigenous Australians with a voice in their affairs through constitutional change. It may be accepted that relief does not have to be provided through money in order for an entity to be a [public benevolent institution]. Entities which, for example, provide relief to the needy in the form of food or accommodation would be capable of being public benevolent institutions. However, there comes a point where an entity can be seen to be pursuing, for beneficial purposes, social, political or legal change through increasing awareness, debate and other activities, rather than providing direct (or sufficiently direct) relief to those intended ultimately to benefit from the entity’s pursuits.

    The applicant has a difficult case for falling within the meaning of “public benevolent institution”. That is not to say that its objects are not beneficial. The applicant’s purposes have been accepted by the respondent as charitable in advancing social or public welfare. A “public benevolent institution” is a charitable institution of a particular kind. The more abstract and less direct an institution’s activities are to the relief of poverty, sickness, destitution, helplessness or distress, the less likely the entity is to be regarded as a [public benevolent institution]. Accepting that a contemporary understanding of the meaning of the phrase would need to be brought to bear, it seems to me that the applicant has a difficult case for being regarded as falling within it. If it is assumed, as I do on this application, that the activities of the applicant are likely in the longer term to provide benefit to Indigenous Australians and to reduce distress, that of itself does not amount to the applicant being a strong contender for being a [public benevolent institution].

    [emphasis added]

22. The observations of Thawley J were made in response to an interlocutory application, and without the benefit of the comprehensive submissions that were put to us. Even so, his Honour’s view that the entity’s activities must provide sufficiently direct relief is consistent with our formulation that there must be a sufficiency of connection between the organisation’s activities and the benevolent ends it pursues. The fact an entity’s activities might inure to the benefit of the target group is not inevitably enough for it be regarded as a public benevolent institution, even though one can identify a logical connection between the activities and the ends. An entity that is organised to advocate for reform and change is (at least in this instance) too far removed from the traditional concepts of benevolence, even allowing for the evolution that has occurred in our understanding of that term. In our view, EAL has not established that, during the relevant period, there was a sufficiency of connection that justified a finding it was entitled to be registered as a charity with the subtype public benevolent institution.  On the face of the evidence, it remained eligible to be registered as a charity with the purpose of ‘advancing public debate.’ We leave for another day the question of whether EAL will become eligible to be registered as a public benevolent institution in subsequent years once the other activities it has foreshadowed come online.

    CONCLUSION

1. Although some PBI cases that have come before the courts have dealt with poverty etc – including The Hunger Project and Global Citizen, a number of cases indicate that the needs being addressed may be wider. This includes Cairnmillar where the services being provided were psychological counselling and Launceston Legacy[49] where the beneficiaries were the spouse or children of deceased servicemen regardless of their financial circumstances.

   [49] Federal Commissioner of Taxation v Launceston Legacy (1987) 75 ALR 122.

2. A further indication that the notion of PBI is not confined to relief of poverty or homelessness can be gleaned from the nature of entities granted PBI status – before December 2012 by the Commissioner of Taxation and since that date by the ACNC Commissioner. According to the ATO there are currently 32,130 DGRs and 11,349 are PBIs – it is the most numerous type of DGR followed by school building funds (5,087). The PBI category includes the Human Rights Law Centre (since 2006); Intersex Human Rights Australia Ltd (since 2012) and the Bisexual Alliance Vic Inc (since 2021).

3. I accept that the term PBI in s 30-45 of the ITAA 1997, and by necessary extension in the ACNC Act, is capable of addressing needs that are not confined to poverty and homelessness, and extends inter alia to human rights. The recognition of human rights as a charitable purpose was made clear by the inclusion of ‘the purpose of promoting or protecting human rights’ (s 12(1)(g) of the Charities Act) and the Human Rights Commission of Australia has recognised that everyone ‘is entitled to enjoyment of human rights without discrimination of any kind, including discrimination on the basis of sexuality, sex identity or gender identity’.[50] The recognition of human rights within the Welfare and Rights category in Div 30 can be identified as occurring in 1982 when Amnesty International was given specific listing. Against this background, it is necessary to consider whether the LGBTIQ+ community is in need of benevolence – the first issue identified above.

   [50] Australian Human Rights Commission, Human Rights and Gay, Lesbian, Bisexual, Transgender and Intersex people:

   Issue 1: Is the LGBTIQ+ community in need of benevolence?

4. The Respondent contended that only some members of the LGBTIQ+ community suffered from ailments that are in need of benevolence. EAL contended that it was not necessary to demonstrate ailments but rather that the need for benevolence arose from the discrimination that members of the community suffered. EAL relied on the written and oral evidence of two experts, Associate Professor Adam Bourne and Dr Saan Ecker, to establish the need of the LGBTIQ+ community for benevolence.

5. The first expert, Associate Professor Adam Bourne (Australian Research Centre in Sex, Health and Society at La Trobe University), provided a report dated 9 February 2022 [Exhibit 1]. That report summarised the distress experienced by LGBTIQ+ population as follows (at [3.1]):

   There is a large body of both Australian and international literature that reports on distress experienced by LGBTIQ+ people and which is associated with their sexuality or gender diversity. This is evident with respect to poor mental health outcomes, increased risk of suicidality, homelessness and housing insecurity, and problematic alcohol or other drug use, all of which are reported at levels higher than observed among the general population of Australia. There is a strong association between the reporting of distress and the experience of being stigmatised, discriminated against, or verbally, physically or sexually abused or assaulted on the basis of gender diversity or sexuality.

   The Report also refers to surveys of LGBTIQ+ adults and LGBTIQ young people aged 13-21 years in 2019 that set out rates of verbal abuse, written threats of abuse, threats of physical violence and sexual assault in the last 12 months – on the basis of sexuality or gender [para 3.3 and 3.4].

6. Associate Professor Bourne also notes that distress in LGBTIQ+ people manifests in poor mental health outcomes, increased risk of suicidality, homelessness, housing insecurity and problematic alcohol or other drug use [para 4.1]

7. Associate Professor Bourne’s concluding opinion was as follows:

   LGBTIQ+ people in Australia experience distress in a variety of forms, including but not limited to increased suicidality, homelessness and housing insecurity and problematic alcohol and other drug use; (2) this distress is often the result of a hostile, stigmatising or excluding environment; and (3) the actions of Equality Australia have a positive impact on mitigating such distress by seeking to reshape the social, policy and legislative environment for LGBTIQ+ people in ways that promote their acceptance, inclusion and human rights. [para 6.1]

8. The second expert was Dr Saan Ecker (psychologist and social scientist at Inter-relate Consulting). She provided a report dated 14 February 2022 [Exhibit 2] that noted the following:

   ·There is a disparity between the health of LGBTIQ+ people relative to the general population.  LGBTIQ+ people experience more mental health challenges, particularly depression, anxiety, suicidal ideation and suicide attempts, than the general population in Australia (at [1]).

   ·There is evidence that (at [4]):

   the increased psychological distress experienced by LGBTIQ+ people, compared to the general population, is directly and indirectly related to the stress associated with perceived, feared, and actual experiences of discrimination, prejudice and stigma.

   ·The term ‘minority stress’ can be used to ‘describe the stress unique to members of minorities who are treated differently, or are at risk of being treated differently because of attributes assigned to them by others, and themselves.’ [para 4]

   ·The minority stress model proposes that the increased vulnerability to mental health issues among LGBTIQ+ people is the result of discrimination, leading to higher levels of stress exposure than others not experiencing discrimination. At [5], Dr Ecker explains:

   Stigmatising experiences associated with minority stress include others significantly discrediting individuals or groups by labelling, stereotyping, differentiating from the norm, status loss, and other disadvantages.

   (citations omitted)

   ·Structural discrimination is a cause of distress (at [7]):

   Structural discrimination refers to macro-level conditions (e.g., legal, political and institutional policies) that limit opportunities, resources, power, and well-being of individuals and populations based on specific attributes including but not limited to: race, gender, sexual orientation, gender identity, disability status, socioeconomic status, religion, national origin and immigration status. Intersectionality (i.e., more than one status) results in additive structural discrimination. Structural stigma in the form of laws and policies that institutionalise inequality of LGBTIQ+ people puts the health of LGBTIQ+ people at risk. Structural stigma reinforces and perpetuates societal-level and interpersonal-level prejudice and discrimination against LGBTIQ+ people and their relationships.

   (citations omitted)

9. Dr Ecker was asked about the extent to which activities conducted by EAL may relieve distress. She noted that there was a gap in the empirical research, but based on Dr Ecker’s opinion:

   o‘legal and policy changes in support of LGBTIQ+ rights should decrease the experience of minority stress and improve well-being amongst LGBTIQ+ people’ [24];

   onational leadership and coordinating activities undertaken by EAL in areas including:

   ·         objecting to the introduction of discriminatory policies (e.g. Religious Discrimination Bill);

   ·         strengthening protections of LGBTIQ+ people (e.g. influencing laws, policies and programs related to conversion therapy);

   ·         removing legal barriers (eg to gender affirming medical treatment)

   ·         proposing law reform and improving legal decision-making frameworks (eg in relation to intersex medical treatment);

   ·         providing input, submissions and reports to government (eg on the harm caused in the context of proposed Religious Discrimination Bill);

   ·         research and information gathering also has the potential to support structural change by highlighting issues of discrimination previously poorly captured.

   may alleviate distress for LGBTIQ+ people [26-7].

10. Dr Ecker also noted benefits related to the reduction in stigma brought about by equalising rights for LGBTIQ+ people and normalising non-heteronormative relationships (at [27]) and that activities undertaken by EAL ‘are consistent with activities that can reduce minority stress impacts experienced by LGBTIQ+ individuals and communities, as well as their families and allies, thereby reducing distress’ (at [39]).

11. This expert evidence was largely unchallenged by the ACNC Commissioner who accepted that members of the LGBTIQ+ community did experience discrimination. The Commissioner was less accepting that all members of the community would suffer stress and that only some would suffer what he termed ‘ailments’ as a result. I return to this point later on.

12. Based on the expert evidence I accept that the LGBTIQ+ community are in need of benevolence. They are more likely to suffer discrimination than the general population based on their sexuality, and are more likely to suffer distress. But I then need to consider whether EAL is organised or conducted for, or promotes the relief of that distress.

    Issue 2: whether EAL is organised or conducted for, or promotes the relief of that distress

13. The test espoused in Perpetual Trustee and applied in subsequent cases requires me to consider the nature and purpose of EAL to determine whether it is entitled to be registered with the PBI subtype.

14. The Applicant was incorporated on 23 December 2015 as a public company limited by guarantee under the name ‘Australians for Equality Limited’. The entity registered as a charity with the ACNC on 6 January 2016 with the subtype ‘Advancing public debate (promoting or opposing a change to any matter established by law, policy of practice in the Commonwealth, a state, territory or another country)’.

15. The organisation was initially focussed on marriage equality and eliminating discrimination on the grounds of sexual orientation by promoting change to Australian law to achieve equal marriage rights for same sex couples.  Australians for Equality Limited partnered with another organisation, Australian Marriage Equality, to form what became known as the ‘Equality Campaign’ to build public and parliamentary support for marriage equality as part of a broader mission to legalise same-sex marriage; this came to be referred to in the public domain as the ‘Yes Campaign’.

16. The outcome of this campaign was the enactment of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) to enable same sex couples to be legally married in Australia.

    The repositioning of EAL after the achievement of marriage equality

17. In 2018, Australians for Equality Limited gave consideration to how the assets, momentum and goodwill that it had accumulated during the ‘Yes Campaign’ could be used to benefit LGBTIQ+ people in Australia and how the organisation could reposition itself to relieve other sources of distress and forms of disadvantage suffered by LGBTIQ+ people. The CEO of EAL, Ms Anna Brown, previously worked for the Human Rights Law Centre as Director of the LGBTI Unit. From 2018 the work of this Unit effectively passed to the refocussed EAL.

18. In December 2018, Australians for Equality Limited re-launched itself with a new name, ‘Equality Australia Ltd’, and identified the following priority projects:

    ·opposing discrimination and laws that permit discrimination against LGBTIQ+ people for religion-related reasons;

    ·working to end ‘conversion therapy practices’;

    ·working on law reform that would allow trans and gender diverse people to update their gender marker on official identification documentation such as birth certificates without the need for surgery; and

    ·working to end, and alleviate the consequences of, medically unnecessary surgeries on intersex people, particularly infants and children, without personal consent.

19. In May 2020, EAL amended its Constitution to reflect the entity’s change in focus. This Constitution, which is currently in force, provides in Part B – Purpose, cl 3 (T docs, p 99):

    The purpose of the company is to improve the wellbeing and circumstances of LGBTI People in Australia and their families and children by:

    a.    relieving their distress and disadvantage;

    b.    reducing the prevalence, and relieving the effects, of depression, suicide, anxiety, bullying and homelessness that they experience;

    c.     reducing the stigma, discrimination and homophobia they experience;

    d.    advancing and promoting equality and inclusion; and

    e.    enhancing their actual, and sense of, safety, security and acceptance.

20. I am satisfied that EAL has the purpose of supporting the LGBTI community. EAL may be entitled to be registered with more than one subtype – something that the legislation clearly contemplates. This is the case even if the entity is registered with the PBI subtype – something contemplated by the Explanatory Memorandum to the ACNC Bill.

21. Perhaps the more important query is whether what EAL does can be described as benevolent. The Respondent contended that the activities of EAL to seek changes to the laws that discriminated against LGBTIQ+ persons did not amount to providing benevolent relief. The Respondent also contended that these activities were political in nature and therefore disqualified EAL from being a PBI. EAL contended that seeking to change the laws that were discriminatory and therefore caused distress to persons in the community could be described as benevolent relief.  EAL also contended that its activities went beyond seeking to change laws. The issue of whether seeking to change law could amount to benevolent relief has not been addressed by the courts. However, I did not have to determine this issue because based on the evidence as presented I formed the view that EAL, since its change in focus in 2018, does engage in activities and projects that can appropriately be described as providing benevolent relief.

22. The activities and projects undertaken by EAL since December 2018 were described by Ms Anna Brown in her witness statement as involving (at [116]):

    a.    devising legal, policy or other solutions that respond to the issues raised by affected individuals or communities within the LGBTIQ+ population;

    b.    developing forums and platforms to provide a space for LGBTIQ+ sub-groups to discuss current issues of concern, share information and resources and provide support. For example, Equality Australia is working closely with intersex community members on the issue of medical treatment for intersex people;

    c.     supporting LGBTIQ+ individuals preparing for or undertaking litigation on LGBTIQ+ policy issues. Equality Australia supports this work through its own legal and policy expertise, assistance with media liaison, and referrals to pro bono legal assistance, community services and psychological care (when needed);

    d.    working in consultation with the relevant LGBTIQ+ community or communities, Equality Australia uses its expertise, and that of others in its network, to co-design and implement strategies to address particular issues facing LGBTIQ+ communities. This work leverages Equality Australia’s legal, policy and communications expertise to build the capacity of the LGBTIQ+ community or communities and individuals affected by the relevant issue. These engagements are often specific to a particular issue or campaign (eg the proposed Religious Discrimination Bill);

    e.    developing content and using Equality Australia’s platforms to amplify the voices of LGBTIQ+ people so that the broader community understands the issues that need to be addressed and are encouraged to take steps to support LGBTIQ+ people. Through this communication and consultation, Equality Australia shares personal stories, provides information regarding current issues faced by LGBTIQ+ people, celebrates and commemorates days of solidarity, pride, remembrance and visibility, and shares opportunities for LGBTIQ+ people to engage with or participate in activities relating to these issues such as surveys, petitions, letters and attending events. In this way, Equality Australia creates a safe space for LGBTIQ+ people and allies to come together and discuss issues common to them as members of the LGBTIQ+ community, and also builds awareness and support for inclusion and equality among industry, mainstream community organisations and the broader community. For example, Equality Australia raises awareness and delivers presentations and briefings on key issues facing LGBTIQ+ people to mainstream community organisations, business, industry and government;

    f.   preparing research reports, submissions and briefing materials on current issues facing LGBTIQ+ people and shares these resources with its network of LGBTIQ+ organisations, to build support and connection between LGBTIQ+ people and to assist network organisations more effectively undertake their own activities. For example, in July 2020, Equality Australia commissioned a YouGov poll in relation to support among Australians for transgender Australia. The poll sampled 1,026 Australians aged 18 years and over. The poll showed overwhelming support from Australians for transgender Australians for trans equality, which was then used by Equality Australia to push for reforms to laws and institutions in Australia including access to gender affirming healthcare, access to ID documents and antidiscrimination laws; and

    g.    conducting surveys and gathering data to better understand the nature and extent of the distress, disadvantage and inequality faced by LGBTIQ+ people. This allows Equality Australia to develop strategies and coordinated responses to address identified issues. Such responses often involve informing and educating governments and members of parliament about reforms needed to alleviate discrimination, disadvantage, and distress of LGBTIQ+ people and building awareness and support for inclusion and equality among industry, mainstream community organisations and the broader community.

    [statement para 116]

23. EAL has also undertaken activities and projects in relation to the following areas since 2018:

    ·ensuring the Australian national census collects data relating to LGBTIQ+ people;

    ·working to improve access to gender affirming healthcare for trans and gender diverse people;

    ·addressing domestic and family violence affecting LGBTIQ+ people;

    ·legal protections for LGBTIQ+ people against vilification and other hate-based conduct;

    ·addressing the impact of COVID-19 on the LGBTIQ+ community;

    ·assisting asylum seekers and refugees seeking protection based on LGBTIQ+ status;

    ·establishing a fellowship program for LGBTIQ+ community members; and

    ·liaising and consulting with affected LGBTIQ+ communities to understand issues faced by them and publicising those issues. 

24. This application form to change EAL’s subtype required the entity to provide a description of activities and an estimate of time allocated to these activities. The response was as follows (T docs pp 144-145):

    ·Events program: 10%

    ·Fellowship program: 13%

    ·LGBTIQ+ Network: 15%

    ·Referrals and support: 20%

    ·Communications program: 17%

    ·Research and education: 15%

    ·COVID-19 related activities: 10%

25. In her statement, Ms Anna Brown stated that the types of activities described in the application – research, education, events, communications and stakeholder work in the LGBTIQ+ Network – is undertaken in relation to each of EAL’s priority areas.

1. EAL, inter alia, seeks to bring about changes to laws, policies, institutional arrangements and attitudes that directly contribute to the constellation of adverse health and social outcomes experienced by many LGBTIQ+ people. One matter that was raised for consideration was whether an entity that is primarily concerned with changing laws that cause distress and pain could appropriately be described as benevolent. Counsel for EAL urged us to do so. We were referred to the statements by Thawley J in Australians for Indigenous Constitutional Recognition v Commissioner for the ACNC [2021] FCA 435, where it was said (at [25]):

   However, there comes a point where an entity can be seen to be pursuing, for beneficial purposes, social, political or legal change through increasing awareness, debate and other activities, rather than providing direct (or sufficiently direct) relief to those intended ultimately to benefit from the entity’s pursuits.

   I note that the case before Thawley J was an interlocutory application relating to costs, and that he did not have the benefit of full argument on the point. However, as I have said, I do not feel the need to address this issue because since the change of focus in 2018, seeking change to the laws relating to the LGBTIQ+ is not all that EAL does.

2. The activities of EAL can be broadly described as seeking to alleviate the distress caused to members of the LGBTIQ+ community by discrimination involving:

   (a)‘advocacy’ (directed at changing laws, policies and practices);

   (b)‘education’ (directed at changing attitudes); and

   (c)‘providing assistance and support’ to individuals and to the wider community more broadly through social events and various networks. Ms Anna Brown gave evidence of specific examples, including support for individuals who have faced discrimination in the workplace (see statement of Ms Anna Brown paras 126) and for trans and gender diverse persons who may face discrimination (see para 179].

3. EAL has described how the charity provides benevolent relief to LGBTIQ+ people:

   We provide intervention and support (e.g. referrals, legal and other information, positive messages, online/in person events and briefings) to LGBTIQ+ people to alleviate discrimination, distress and disadvantage and generate positivity and connection; we support LGBTIQ+ community organisations to meet the immediate needs of LGBTIQ+ people suffering disadvantage by developing and sharing resources and information on key issues affecting LGBTIQ+ people and engaging in training and capacity building; we convene and resource gatherings of LGBTIQ+ community organisations to build knowledge and share information; we prepare research reports and submissions to assist LGBTIQ+ community organisations to alleviate the distress and disadvantage suffered by LGBTIQ+ people; we gather data on the nature and extent of the distress, disadvantage and inequality experienced by LGBTIQ+ people in order to develop strategies and coordinate responses to address these experiences and conditions; we use our research and legal knowledge to inform and educate government and parliamentarians about programmatic, policy and legal reform to alleviate the discrimination, disadvantage and distress experienced by LGBTIQ+ people and promote inclusion and equality; we build awareness and support for inclusion and equality among industry and mainstream community organisations and the broader community; we convene online and in person events to provide support to LGBTIQ+ people and ease the distress and disadvantage they face; and we inform and educate LGBTIQ+ people and the broader community about current issues and the impact of discrimination, disadvantage and inequality.[51]

   [51] T Documents p 143.

4. Ms Anna Brown provided specific examples in her written and oral evidence that included working with Sydney World Pride;[52] maintaining a network of LGBTIQ+ entities[53] and a large database of supporters/contacts[54] as well as carrying on the work that had previously been carried out by the LGBTIQ+ Unit of the Human Rights Law Centre.[55]

   [52] Witness Statement of Ms Anna Brown para 231(b).

   [53] Ibid, para 39(c) and paras 101-105.

   [54] Ibid, paras 101-105.

   [55] Ibid para 10.

5. Based on this evidence of support for the LGBTIQ+ community, I am satisfied that prima facie EAL are appropriately described as benevolent.

   ACNC Commissioner’s arguments

6. The ACNC Commissioner argued the traditional concept of benevolent work is concerned with providing relief or mitigation from effects; it is not properly concerned with tackling underlying causes of those effects. On that view, a PBI is in the business of providing direct and practical assistance for coping with the lived experience of problems rather than with reforms directed to achieving structural change. In this regard, the Respondent appears to be saying that taking preventative action is not benevolent – even if the prevention is ultimately successful in relieving the hardship. The distinction does not however align with decided cases. In Maughan’s case, the provision of social and sporting facilities was essentially a way of keeping young boys from poor suburbs occupied and out of harm’s way. In Cairnmillar, providing counselling to those suffering psychological disorders was likely to prevent them from suffering from more significant mental health issues. In Global Citizen the provision of vaccines was directed to ensuring the recipients did not contract serious disease. In any event, I do not need to determine whether seeking changes to laws, policies or practices of itself could be benevolent because I have determined that EAL, since its change of focus in 2018, does more than that.

7. The Commissioner also argued that Equality Australia’s political advocacy and lobbying activities disqualified it from being a PBI. No particular case was relied on for this proposition although reference was made to Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539 which would seem to suggest that such activities were not disqualifying. Perhaps the argument here is that if all EAL does is work to achieve changes in the law, then it does not have a benevolent purpose. If this was the case – as indeed it may have been for EAL before its change in focus, this would raise the issue considered by Thawley J in Australians for Indigenous Constitutional Recognition v Commissioner for the ACNC which I have addressed above. In any event, I have formed the view that the activities (and purpose) of the Applicant are not so confined.

8. Another argument that I considered was whether the needs being addressed needed to be such as to arouse pity and compassion – a phrase used in Cairnmillar. The phrase is problematic for several reasons: it is subjective – for example, not everyone feels compassionate about refugees or other disadvantaged groups; and outdated, because it has echoes of welfare and handouts rather than being inclusive about rights, including human rights. Perhaps another way of framing this concern is to observe that some of the issues of concern to EAL may be considered to be controversial eg the rights of transgender persons to access gender affirming healthcare. I acknowledge that, while the LGBTIQ+ community comprises diverse interests and not all views will be universally accepted, rights and attitudes evolve. It is also important to remember that homosexuality was not finally decriminalised in Australia until 1994.[56] In any event, I am less concerned with the fact that some positions adopted by EAL may be controversial than with the clear evidence that EAL supports members of the LGBTIQ+ community who are subject to discrimination and the resulting distress.

   [56] Human Rights (Sexual Conduct) Act 1994 (Cth).

9. A characterisation process which does not set out express criteria invites the decision-maker to stand back, review the stated purpose and activities of the organisation, and make a broad evaluative judgment as to that organisation’s essential nature. The evaluation must be objective, and it must be evidence-based, but it ultimately involves forming an impression. It is not a question that can be resolved through exact proof: as courts have observed in other contexts, sometimes, one just knows whether something meets a definition when one sees it. The best a decision-maker can do is describe the basis of the impression. While that might strike some as being unsatisfactorily vague, it is almost certainly what parliament intended in this case when it used a multi-faceted word like ‘benevolent’. As the High Court made clear in Perpetual Trustee, the use of that word involved an analysis of the objective nature of the activity, but it also called attention to the contemporary understanding of the community.

10. The Tribunal grappled with the PBI concept most recently in Global Citizen. That decision was met with excited commentary in some quarters. But it was ultimately a straight-forward contemporary application of the theme discussed above. The Global Citizen organisation was devoted to addressing needs (assisting the poor, preventing disease, etc) that aroused a widespread benevolent response. While some of the organisation’s methods were new, and there was a strong focus on working with governments and other large non-government organisations, the Tribunal concluded the modus operandi of the organisation - while not irrelevant - was less important than the classically benevolent ends for which the organisation was established, and for which it was clearly working. But it was not an easy case, precisely because it invited the Tribunal to probe the boundaries of an imprecisely defined concept which invites value judgments without clear signals of objective intent from the legislature. That is uncomfortable ground for any objective decision-maker.

11. At the conclusion of its reasons in Global Citizen, the Tribunal explicitly questioned whether it was becoming so difficult to divine the boundaries of the PBI category that some legislative reform was warranted.[57] While I am satisfied the through line between the reasoning in Perpetual Trustee and the Tribunal’s decision in that case is sufficiently clear, I acknowledge the question over which organisations will qualify as PBIs is difficult, and increasingly so. The task has certainly not become any easier in the present proceedings.

    [57] I note that in the Budget in October 2022 the government announced that the Productivity Commission would ‘review the current framework to incentivise philanthropy in the not-for-profit sector’: Federal Budget October 2022, Budget Paper No 2, p 194: Budget 2022‑23 (October); The Productivity Commission has now commenced the review and is expected to release a draft report in November 2023:

12. However, contrary to the decision of the other members of the Tribunal, I have formed the view that EAL is entitled to be registered with the subtype PBI.

13. As in Global Citizen, I note that all parties appearing for the Applicant did so on a pro bono basis. The willingness of advisers and counsel to act in this way means that important matters are able to be litigated. But I am mindful that there are still barriers to having matters determined beyond the no-costs jurisdiction of the Tribunal and that any subsequent appeal could potentially expose the applicants to an adverse costs order. It may be an appropriate matter for the ACNC Commissioner or the legislator to give some thought to establishing a test-case funding program.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe, Senior Member Ann O'Connell, Member Louise Bygrave

...............................[SGD].................................

Associate

Dated: 30 June 2023

Date(s) of hearing:	1, 2, 3 August 2022
Counsel for the Applicant:	Ms J Batrouney AM KC with Ms T Phillips and Ms A Mobrici
Solicitors for the Applicant:	Gilbert + Tobin
Counsel for the Respondent:	Dr J Jaques KC with Mr H Mazloum
Solicitors for the Respondent:	Australian Government Solicitors