Global Citizen Ltd and Commissioner of the Australian Charities and Not-for-profits Commission - [2021] AATA 3313

Global Citizen Ltd and Commissioner of the Australian Charities and Not-for-profits Commission [2021] AATA 3313 (17 September 2021)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2020/2402
Re:Global Citizen Ltd
APPLICANT

Commissioner of the Australian Charities and Not-for-profits CommissionAnd
RESPONDENT

DECISION
Tribunal:Deputy President Bernard J McCabe
Professor Ann O’Connell, Senior Member
Date:17 September 2021
Place:Melbourne

The decision under review is set aside and in substitution the Tribunal determines that Global Citizen Ltd is entitled to be registered as a charity with the subtype ‘Public benevolent institution’ in Item 14, s 25-5 of the AustralianCharities and Not-for-Profits Commission Act 2012 (Cth).

...........................SGD..........................
Bernard J McCabe, Deputy President
Catchwords
REGISTRATION AS A PUBLIC BENEVOLENT INSTITUTION – whereas the applicant is registered as a charity under the subtype of advancing education - whether the applicant has a benevolent purpose - whether the applicant provides relief - the applicant satisfies the required criteria - decision under review set aside - the applicant is to be registered as a public benevolent institution
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Charities and Not-for-Profits Commission Act 2012 (Cth)
Charities Act 2013 (Cth)
Estate Duty Assessment Act 1914-1928 (Cth)
Fringe Benefits Tax Assessment Act 1986 (Cth)
Income Tax Assessment Act 1927 (Cth)
Income Tax Assessment Act 1997 (Cth)
Taxation Administration Act 1953 (Cth)
Cases
Aid/Watch Inc v FCT (2008) 71 ATR 386
Ambulance Service (NSW) v Deputy Commissioner of Taxation (2003) 130 FCR 477
Ambulance Services of New South Wales v Deputy Commissioner of Taxation [2002] FCA 1023
Ambulance Services of New South Wales v Deputy Federal Commissioner of Taxation (2003) 130 FCR
Attorney-General v Adams (1908) 7 CLR 100
Australian Council for Overseas Aid v Federal Commissioner of Taxation 1980) 33 ACTR 496
Australian Council of Social Service v Commissioner of Pay-roll Tax (NSW) (1982) 13 ATR 290
Australian Council of Social Services v Commissioner of Pay-roll Tax (1985) 1 NSWLR 567
Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2021] FCA 435
Bodalla Aboriginal Housing Co Ltd v Eurobodalla Shire Council (2011) NSWLEC 146
Chesterman v Federal Commissioner of Taxation (1925) 37 CLR 317
Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute (1990) 90 ATC 4752
Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute [1992] 2 VR 706
Commissioner of Taxation v The Hunger Project Australia (2014) 221 FCR 302
Commissioner of Taxation v Word Investments (2008) 236 CLR 204
Federal Commissioner of Taxation v Launceston Legacy (1987) 15 FCR 527
Gumbangerrii Aboriginal Corporation v Nambucca Council [1996] NSWLEC 103
Lemm v Federal Commissioner of Taxation (1942) 66 CLR 399
Maclean Shire Council v Nungera Co-operative Society Ltd (1995) 86 LGERA 430
Marriage Guidance Council of Victoria v Commissioner of Pay-roll Tax (1990) 21 ATR 1272
Maughan v Federal Commissioner of Taxation (1942) 66 CLR 388
Metropolitan Fire Brigades Board v Federal Commissioner of Taxation (1990) 27 FCR 279
Mines Rescue Board (NSW) v Federal Commissioner of Taxation (2000) 101 FCR 91
Navy Health Ltd v Federal Commissioner of Taxation [2007] FCA 93
Northern Lands Council v Commissioner of Taxes [2002] NTCA 11
Perpetual Trustee Co Ltd v Federal Commissioner of Taxation 1931) 45 CLR 224
Public Trustee v Federal Commissioner of Taxation (1934) 51 CLR 75
Re Adoption Privacy Protection Group Inc v FCT [2004] AATA 1121
Re Women’s Life Centre v Australian Charities and Not-for-profits Commissioner (2003) 130 FCR 477
Shi v Migration Agents Registration Authority [2008] HCA 31
Special Purposes of the Income Tax v Pemsel [1891] AC 531
Stratton v Simpson (1970) 125 CLR 138
Taxation Case 101 (1945) CTBR 677
The Hunger Project Australia v Federal Commissioner of Taxation [2013] FCA 693
Trustees of the Indigenous Barristers’ Trust v Federal Commissioner of Taxation (2002) 127 FCR 63
Waubra Foundation v Commissioner of Australian Charities and Not-for-profits Commission [2017] AATA 2424
Secondary Materials
Australian Charities and Not-for-Profits Commission, Commissioner’s Interpretation Statement, Public Benevolent Institutions, para 5.6.6
Australian Taxation Office, Taxation Ruling TR 2003/5 Income Tax and Fringe Benefits Tax: Public Benevolent Institution
Paul Ronalds, The Change Imperative: Creating the Next Generation NGO (Kumarian Press, 2010).
REASONS FOR DECISION
Deputy President Bernard J McCabe
Professor Ann O’Connell, Senior Member

Global Citizen Limited (GCL) is a not-for-profit entity that is registered as a charity by the Australian Charities and Not-for-profits Commission (ACNC). All charities are registered according to their subtype. GCL is currently registered with the subtype of advancing education. GCL wishes to be registered with the subtype of a public benevolent institution (PBI). The Commissioner of the ACNC has refused the application.
GCL says it aims to end extreme global poverty by the year 2030. It argues that objective, and the means it employs to achieve it, brings GCL within the concept of a PBI as that expression is now understood. The Commissioner of the ACNC questions whether GCL has other purposes which prevent it from being characterised as a PBI. Most of the evidence and argument at the hearing focused on the Commissioner’s second concern, namely that GCL does not provide relief directly (or through related entities) to those in need, but instead works to convince governments and major philanthropists to provide relief. The ACNC says what might be characterised as lobbying activities are not comprehended by the PBI concept.
We have concluded that, as a matter of law, GCL is capable of being registered as a PBI. We explain our reasons for that conclusion below.
We acknowledge our decision has important implications beyond the fate of GCL’s application for registration as a PBI. Given the public interest which attaches to the case, we will begin by explaining the nature of the review we have undertaken. We will then proceed to discuss the evidence and make findings of fact before dealing with the law.
THE ROLE OF THE TRIBUNAL
It is often said the Tribunal is required to make the ‘correct or preferable decision’ on the material before it at a hearing. In reality, the Tribunal only considers what is ‘preferable’ in cases where the legislation in question creates a discretion that leaves open the possibility of more than one lawful outcome. But even in those cases where the Tribunal is required to articulate a preference, the preference in question is not that of the individual members who constitute the Tribunal on that occasion. The personal preferences of the Tribunal members are irrelevant. The Tribunal member’s job is to be scrupulously objective and act as an instrument of good government. In cases where preference is in issue, the Tribunal must decide what is objectively preferable having regard to the policy evident in the statute.
In most cases coming before the Tribunal – including this one - the question of preference does not arise. The Tribunal is merely required to decide the correct outcome according to law. In making its decision, the Tribunal is required to act judicially and explain the legal basis for its conclusions. The Tribunal’s decision-making process is supervised and reviewed by the courts. If the Tribunal asks itself the wrong question, or arrives at a legally defective answer, the court will set it to rights on appeal.
Of course, to say the Tribunal is ‘merely required to decide the correct outcome according to law’ rather understates the challenge where the statutory language is general, dense, or ambiguous, and where the facts are novel. But even in those situations, we are not ‘creating new law’ when we make our decision. The process we follow is always the same in such cases: we must correctly frame the question derived from the statute, make findings of fact based on the evidence, and apply the law (which includes, as a practical matter, the reasoning of the courts in relevant cases) to answer the question which decides the outcome. The novelty of the outcome, or the policy issues which arise from our conclusions, are matters for the parliament to consider.
We say all this at the outset of our reasons in this case because:
(a)the statutory provisions we are applying rely heavily on common law concepts, and the scope and understanding of those concepts has evolved over time in the courts; and
(b)the legal outcome raises important questions of policy which might invite further debate.
BACKGROUND TO THE APPLICATION
GCL is exempted from paying income tax because it has been registered as a charity with the subtype of advancing education. However, GCL wishes to become a ‘deductible gift recipient’ (DGR) under the income taxation legislation. Broadly speaking, a taxpayer who donates money to a DGR is able to claim a deduction in respect of the gift. But evidence provided by GCL suggested it was not seeking DGR status to facilitate it engaging in public fundraising. Rather, GCL sought DGR status so it could apply for grants from ancillary funds that are also DGRs. Ancillary funds are funds established under a will or instrument of trust and may be Private Ancillary Funds (PAFs) or Public Ancillary Funds (PuAFs). Ancillary funds are a separate category of DGR (Item 2 DGRs). Item 2 DGRs may only make grants to Item 1 DGRs.[1]
[1] S 30-15(2), Item 2 Income Tax Assessment Act 1997 (Cth).
GCL applied to the ACNC to change its charitable subtype on 3 August 2018. The application was refused by the Commissioner on 6 September 2019 (the original decision). GCL objected to the original decision on 5 November 2019. The objection was disallowed by the Commissioner on 27 February 2020 (the objection decision). That means the application to be registered as a PBI was still refused.
ISSUES
The substantive issue to be decided by this Tribunal is whether GCL is entitled to be registered as a PBI under s 25-5(1), Item 14 of the Australian Charities and Not-for-Profits Commission Act 2012 (Cth) (the ACNC Act). Before deciding this, we must briefly discuss the process of making an objection to the Commissioner’s decision.
THE OBJECTION PROCESS
The role of the Tribunal is to undertake independent merits review of administrative decisions made under Commonwealth laws. This is sometimes referred to as a hearing de novo because we do not focus on errors in the making of the administrative decision, but reconsider the facts and circumstances afresh. This deliberative process normally requires consideration of the facts and circumstances at the time of the hearing before the Tribunal.[2] However, that is not always the case. It is necessary to have regard to the terms of the legislation that confers the right of review in order to determine the precise scope of our task.
[2] Shi v Migration Agents Registration Authority [2008] HCA 31, per Kirby J [50], per Hayne and Heydon JJ [101], Crennan J [117] and, agreeing on this point, Kiefel J [121].
Division 160 of the ACNC Act sets out the process for objecting to an original decision made by the Commissioner under that Act. The person objecting to the decision must first lodge an objection with the Commissioner.[3] If the person is dissatisfied with the objection decision, they may seek a review of that decision in this Tribunal.[4] This is what GCL has done in this case.
[3] ACNC Act s 160-10(1).
[4] Ibid s 160-10(5).
Division 165 of the ACNC Act sets out the process by which an applicant may seek review of the decision of the Commissioner by the Tribunal and also modifies the operation of the Administrative Appeals Tribunal Act 1975 (the AAT Act) in a number of respects. Section 165-25 refers to an application to the AAT ‘for review of an objection decision’ (and modifies s 37 of the AAT Act dealing with lodgement of documents). Section 165-40 of the ACNC Act restricts the matters which an applicant may raise on an application for review and, in addition, provides for the applicant to have the burden of proof. That section is clearly modelled on s 14ZZK of the Taxation Administration Act 1953 (Cth) and has a similar effect. Section 165-40 provides:
165-40 Grounds of objection and burden of proof
On an application for review of an objection decision:
(a) the applicant is, unless the Administrative Appeals Tribunal orders otherwise, limited to the grounds stated in the objection to which the objection decision relates; and
(b) the applicant has the burden of proving that the administrative decision concerned should not have been made or should have been made differently.
It has been accepted that the nature of the objection process, and the reference to the applicant’s burden of proving the administrative decision wrong, means this is a ‘point in time’ enquiry. It follows the Tribunal is confined to looking at the applicant at the time of the original decision: see Waubra Foundation v Commissioner of Australian Charities and Not-for-profits Commission [2017] AATA 2424. But it is still a re-hearing or hearing de novo. The Tribunal is not prevented from taking into account evidence that was not before the original decision-maker (subject to it being consistent with the grounds of objection) provided the evidence is relevant to determining what was the correct decision at the particular point in time. In any event, the parties did not argue the timing made any difference in this case because the applicant’s purpose and activities have not changed.
THE LEGISLATIVE SCHEME
Since 2012, the ACNC has been responsible for registering entities that are eligible to be registered as charities. As part of its remit, the ACNC must determine the relevant subtype or subtypes. (We say subtypes because s 25-5(4) of the ACNC Act says an entity may have more than one subtype.) A charity must be registered under the ACNC Act to be entitled to various federal tax concessions (eg income tax exemption). The relevant subtype may also determine eligibility for certain tax concessions (eg gift deductibility and fringe benefits tax concessions). Prior to 2012 entities wishing to be eligible for various federal tax concessions only needed to be endorsed by the Commissioner of Taxation.
An entity seeking registration must meet a number of conditions set out in s 25-5(3) of the ACNC Act. The parties are in agreement that GCL is a charity under the Charities Act 2013 (Cth) (Charities Act) and is otherwise eligible to be registered.
Section 25-5(2) of the ACNC Act deals with registration of subtypes. The sub-sections provide:
(2) An entity is entitled to registration as a subtype of entity if:
(a) it meets the conditions in subsection (3); and
(b) it meets the description of that subtype of entity in column 2 of the table in subsection (5); and
(c) it is entitled to registration as the type of entity that corresponds to that subtype of entity (as set out in that table); and
(d) it is registered as that type of entity.
The relevant subtypes are set out in a Table in s 25-5(5). There are currently 14 subtypes. The first 12 subtypes correspond with the charitable purposes set out in s 12(1) of the Charities Act. Item 14 in the Table is ‘a public benevolent institution’ or PBI.
Being registered as a charity under the ACNC Act means the entity is prima facie entitled to be income tax exempt under Div 50 of the Income Tax Assessment Act 1997 (Cth)(ITAA 97),[5] but the registered entity must also be endorsed as income tax exempt by the Commissioner of Taxation.[6] GCL has been so endorsed.
[5] ITAA 97 s 50-5, item 1.
[6] Ibid sub-div 50-B.
We have already mentioned some charities may also be eligible for other tax concessions, including being eligible to receive tax deductible gifts under Div 30 of the ITAA 97 (such entities are referred to as deductible gift recipients (DGRs)) and to provide exempt or rebatable fringe benefits to employees under the Fringe Benefits Tax Assessment Act 1986 (Cth). These valuable benefits constitute a form of public subsidy to these organisations.
Division 30 of the ITAA 97 sets out various categories of DGRs in the Table in s 30-15(2). They include a range of entities set out in the Tables in Sub-div 30-B (Item 1 in the Table in s 30-15(2)). These types of entities are often referred to as ‘Item 1 DGRs’. One type of charity that is so eligible is a registered PBI (under s 30-45(1), Item 4.1.1.) which is also one of the subtypes set out in s 25-5 of the ACNC Act. The term ‘registered PBI’ appearing in s 30-45(1) of the ITAA 97 is defined in s 995-1 as an institution that is:
·A registered charity; and
·registered under the [ACNC Act] as the subtype of entity mentioned in column 2 of item 14 of the table in subsection 25‑5(5) of that Act.
The entity must also be endorsed by the Commissioner of Taxation as a DGR.[7] It follows that GCL will not be eligible to be endorsed as a DGR unless it is registered with the subtype of a PBI.
[7] Under subdiv 30-BA ITAA 97.
Division 30 ITAA 97 also has another category of DGR - an ‘ancillary fund’ established, inter alia, for the purpose of providing money, property or benefits to Item 1 DGRs (Item 2 in the Table in s 30-15(2)). In other words, ancillary funds (Item 2 DGRs) may only make grants to entities that are Item 1 DGRs. GCL says it wishes to become an Item 1 DGR in order to to receive grants from ancillary funds in the same way its parent, Global Poverty Project Inc, receives grants from philanthropic foundations in the United States. We have no reason to doubt that explanation of its motivation.
ABOUT GCL
The discussion of GCL’s history is largely uncontroversial and is drawn from the essentially uncontested evidence supplied by the applicant.
GCL was incorporated as a company limited by guarantee on 14 April 2010. Its sole member and parent entity is Global Poverty Project Inc which trades as Global Citizen (GPP US). GPP US is a non-profit entity that is eligible to receive tax deductible contributions[8] on the basis it is a public charity[9] in the United States. GCL and GPP US are part of a global network of entities operating as part of the Global Citizen Network (GC Network). In addition to Australia and the United States, the GC Network includes entities in the United Kingdom, Canada, South Africa and Nigeria.
[8] Under s 170 Internal Revenue Code (26 US Code).
[9] Under s 501(c)(3) Internal Revenue Code (26 US Code). The Code distinguishes between ‘public charities’ and ‘private foundations’ in a way that broadly corresponds to the distinction under the ITAA 1997 between Item 1 DGRs and Item 2 DGRs.
GCL was founded by three individuals who met in about 2003 while working at Oaktree Foundation Australia (Oaktree). Oaktree is a youth organisation (run by 16 to 26 year-olds) focused on youth empowerment. Oaktree raises funds and joins with other entities in projects in the developing world, but also runs educational programs and seeks to influence policy change to achieve its vision of a more just world. Oaktree is a registered charity and a DGR for tax purposes.
The success of Oaktree in mobilising young people was recognised by Rev Tim Costello AO who gave evidence in the form of a statement in these proceedings. Rev Costello was the CEO of World Vision Australia at the time Oaktree was established. In around 2004 to 2006, according to one of the co-founders of GCL, Simon Moss,[10] Rev Costello encouraged Oaktree and its members to use their collective voice to hold government accountable in meeting Australia’s foreign aid commitments, as this would far exceed any funding that could be raised by private donations. Mr Moss gave evidence that this influenced the model subsequently adopted by GCL.
[10] Simon Moss, one of the co-founders of GCL, is currently Managing Director of Campaigns of GPP US.

At around this time, Oaktree, including the 3 individuals who would go on to co-found GCL, was planning a ‘Make Poverty History Concert’ in collaboration with a number of organisations such as World Vision Australia, Oxfam Australia, UNICEF Australia, Caritas Australia Limited and Plan International. The aim of these entities in collaborating was to achieve the United Nations’ Millennium Development Goals launched in 2000, which included ‘eradicating extreme poverty and hunger’. The concert was held on the eve of the G20 Meeting of Finance Ministers in Melbourne in 2006. Artists that performed included U2 and Pearl Jam. Tickets to the concert were not sold but rather allocated to engaged individuals who had taken actions, such as volunteering or signing a petition, to ask the Australian Government to increase its aid. The concert received press coverage and resulted in meetings with the government and opposition about Australia’s aid commitments. Mr Moss said in his evidence that following the concert he met with the then Treasurer who said that any further increase in the aid budget would require a demonstrable increase in public support. Mr Moss also gave evidence that following the concert the federal opposition did publicly commit to double the aid budget if elected.
As a result of the Make Poverty History concert and the response to it, the co-founders saw an opportunity to combine informed individuals and high-profile artists to secure specific commitments from government, large corporations and wealthy philanthropists to a project or projects to eradicate poverty. According to Mr Moss, he and the other co-founders also understood there were misconceptions about global poverty, for example that it was insurmountable. Mr Moss gave evidence that they decided awareness-raising or education was necessary.
In 2008, the co-founders retired from Oaktree having reached the age of 26. They established the Global Poverty Project Charitable Trust (the Trust) which was the predecessor to GCL. The main object of the Trust was ‘to support a campaign called the Global Poverty Project which seeks to achieve awareness raising, policy change and action for the relief of poverty’. Mr Moss explained the Trust prepared a slideshow and film titled ‘1.4 billion Reasons’ (the Presentation), referencing the then 1.4 billion people living in extreme poverty (ie, on less than $US1.25 per day[11]). The Trust reported that the Presentation was launched in July 2009 and by September 2009 had been delivered to more than 12,000 people at more than 70 events. The initiative resulted in more than 5,000 people responding to a website saying they would take some action to end extreme poverty. The Trust was invited to take the presentation overseas and this resulted in entities being established in the United States, the United Kingdom and Canada which eventually came to comprise the GC Network.
[11] Adjusted by the World Bank in 2015 to $US1.90: >
In 2010, GCL was incorporated and the Trust was wound up. GCL was originally incorporated under the name Global Poverty Project Limited but changed its name to GCL in June 2016.
In 2011, GCL started work on a campaign to end the spread of polio. This campaign recognised that polio disproportionately impacts those living in extreme poverty and further entrenches poverty as it results on debilitating symptoms, including acute life-long paralysis. The aim was to secure funding from governments and major philanthropists for a polio vaccination program in the developing world as a step towards eliminating extreme poverty. We were told GCL’s efforts were devoted to securing specific outcomes, whereas in contrast Oaktree focused on raising awareness.
Building on the model developed earlier by Oaktree, GCL developed the idea of a concert, The End of Polio Concert, on the eve of the Commonwealth Heads of Government Meeting (CHOGM) in Perth in October 2011. The polio concert was organised in collaboration with Oaktree. GCL organised a petition calling for polio eradication to be placed on the CHOGM agenda and for additional funding to be committed to the Global Polio Eradication Initiative (GPEI), a World Health Organisation-led alliance. The petition was handed to the Prime Minister at a meeting with representatives of GCL. The concert was headlined by John Legend and attended by approximately 5,000 people, most of whom had been allocated tickets as a result of signing the petition or taking social media actions. The Minister for Foreign Affairs went on-stage and, on behalf of the Prime Minister, foreshadowed a significant commitment would be made to GPEI at CHOGM the next day.
The day after the concert, the leaders of Australia, the United Kingdom, Canada, Pakistan and Nigeria (as well as Bill Gates via video message) pledged $A118 million of additional funds for polio eradication. This included a pledge by the Australian government of $A50 million over four years.
In 2012, the co-founders expanded the operations of the global citizen model internationally. This involved establishing entities in a number of countries, including the United States. This was intended to take advantage of being in the world’s largest economy and to focus events to coincide with world leaders being in New York for United Nations meetings. At around this time, a network website was also established, to be centrally administered by GPP US, to ensure coherence across all network entities.
Also in 2012, GPP US hosted the inaugural Global Citizen Festival (GC Festival) in New York, timed to coincide with world leaders being in New York for the United Nations General Assembly. A similar formula to previous concerts was used: high profile artists and guest appearances of world leaders, including Queen Silvia of Sweden, Prime Minister of India Narendra Modi, and Prime Minister of Norway Erna Solberg. President Barack Obama appeared at the 2014 concert via a pre-recorded video. The GC Festival has been held each year from 2012 to 2019. Mr Moss gave evidence that a televised global event is planned for September 2021. Several of the GC Festivals have been hosted by Hugh Jackman and Deborra-Lee Furness. Similar concerts have been held in London, Vancouver, Montreal, Hamburg, Mumbai and Johannesburg by entities in the GC Network. The GC Festivals, like the other concerts, have been a joint effort with a range of other organisations including the United States Fund for UNICEF, World Vision, charity: water, World Food Program USA, Pencils for Promise, the Global Partnership for Education, Malaria No More, the Earth Institute and Earth Day Network.
In 2015 the United Nations launched the Sustainable Development Goals (SDGs) as the successor to the Millennium Development Goals. The launch coincided with the 2015 GC Festival and United Nations Secretary-General Ban Ki-moon appeared at the event to celebrate the launch.
Following the launch of the SDGs, entities within the GC Network, including GCL, have publicly embraced the SDGs (referred to on their website as the Global Goals) as a framework for action directed towards elimination of extreme poverty by 2030. Mr Moss stated in evidence that the Global Goals are important because they target the root causes of poverty. There are 17 Global Goals, but we were told goals 1 to 6 are regarded by the GC Network as the most significant. They are:
1. No Poverty
2. Zero Hunger
3. Good Health and Well-Being
4. Quality Education
5. Gender Equality
6. Clean Water and Sanitation
Mr Moss gave evidence that entities within the GC Network decided to adopt the ‘Global Citizen’ name more fully around this time. He also gave evidence that this was behind the decision to change the name of the legal entity from Global Poverty Project Ltd to GCL and to cease delivery of the Presentation. Mr Moss gave evidence that GCL, like its parent, undertook a change to its objects to reflect its mission: to end extreme poverty by 2030. This culminated in the adoption by GCL of a new constitution in 2018. GCL’s objects as set out in its constitution are discussed below.
Finally, Mr Moss gave evidence that entities within the GC Network work together under a model (the GC Network Model) that builds on previous campaigns to raise awareness of problems and use that to secure funding from governments, government agencies, large corporations and philanthropists. The Model has 5 elements:
·Element 1: informing and encouraging people to learn about the Global Goals and equipping them with the knowledge and inspiration to achieve them.
·Element 2: encouraging people to take action to achieve the Global Goals, in particular but without limitation, by applying pressure to world leaders to make commitments to achieve the Global Goals to end world poverty’.
·Element 3: communicating, including by way of in person meetings, with parliamentarians and world leaders to advocate for commitments towards the achievement of the Global Goals.
·Element 4: combining the efforts of engaged individuals and Global Citizen’s partners to secure commitments from world leaders in pursuit of the Global Goals.
·Element 5: tracking the commitments of world leaders to hold them accountable and also to ensure that Global Citizen, though its Model, is continuing to pursue its purpose of poverty relief.
The model does not just contemplate activities that are devoted to raising awareness. It also contemplates focused action towards achieving the Global Goals.
GCL’S CURRENT OPERATIONS
Sarah Meredith is GCL’s Country Director in Australia having held that position since 2016. There are four full-time staff in Australia, including Ms Meredith. The Board of GCL consists of prominent Australians. Ms Meredith said:
(i)GCL is financially dependent on its parent, GPP US, and receives an annual grant that covers the expenses of GCL, including the main expense of employee costs. (We would add the evidence clearly established GCL does not receive a success fee or a commission when it succeeds in persuading governments to unlock funds or change priorities.); and
(ii)GCL follows the GC Network Model adapted for Australia.
Ms Meredith provided the following examples of how the GC Network Model is adapted for Australia. She said GCL:
·provided information by social media and email and held grassroots events such as the ‘Level the Law’ campaign event (relating to Global Goal 5 Gender Equality) and co-hosting film screenings eg on issues connected to the root causes of extreme poverty);
·worked with GPP US and the Waislitz Foundation in Australia to facilitate an awards program that makes grants to projects that advance the SDGs. In 2020 grants totalling $US250,000 funded by the Waislitz Foundation in Australia were made;
·communicated with government and philanthropists by making parliamentary submissions and writing to individual parliamentarians and philanthropists seeking support for projects. GCL also hosted parliamentary events and meetings with world leaders;
·hosted concerts and other events in support of campaigns together with other entities in the GC Network. The GC Network had been working on a multi-city series of events, Global Goal Live – The Possible Dream, but this has been disrupted by COVID; and
·worked with other entities in the GC Network to track commitments made and ensure accountability.
Ms Meredith also described GCL’s activities in relation to three campaigns – polio eradication; vaccination and the fight against infectious diseases – to demonstrate the modus operandi of GCL, including details of partnerships with other entities. She gave the following evidence about those campaigns.
The polio eradication campaign
GCL engaged in the polio eradication campaign (in support of SDG 3 – Good Health and Wellbeing) in support of The Global Polio Eradication Initiative (GPEI). GPEI is based in Switzerland and describes itself as a public-private partnership led by national governments with six partners: the World Health Organization (WHO) (which has the lead role), Rotary International, the US Centre for Disease Control and Prevention (CDC), the United Nations Children’s Fund (UNICEF), the Bill & Melinda Gates Foundation and Gavi, the Vaccine Alliance. Its goal is to eradicate polio worldwide. In 2017, in response to a report that Australia’s commitment to the GPEI was at risk, GCL carried out the following activities:
·hosted an annual World Polio Day Parliamentary event and arranged for a GPEI official to meet with Members of Parliament (MPs), High Commissioners and Ambassadors and officials of the Department of Foreign Affairs and Trade (DFAT);
·wrote to the Prime Minister seeking a commitment of additional funding for polio eradication; wrote to MPs asking them to become a ‘One Last Push parliamentary champion’ and secured commitments from MPs to put motions and ask questions in Parliament about polio;
·met with key officials, including MPs and Senators in attendance at the World Polio Day 2017 BBQ reception and briefed DFAT and Department of Health officials, and called on the Health Minister to ensure Australia emphasised a renewed commitment to polio in the G20 Health Ministers communique; and
·created and circulated various communications calling for engaged individuals to take action in support of increased funding for GPEI.
Many of these activities were undertaken in partnership with other organisations, including Rotary, RESULTS Australia and Polio Australia as well as UNICEF and WHO.
Ms Meredith noted that in 2017, the Foreign Affairs Minister announced an $A18 million commitment over 3 years for GPEI. This was affirmed at CHOGM in London in 2018 and in 2019 Australia pledged an additional $A15 million to GPEI at a meeting in Abu Dhabi. The contribution of GCL was acknowledged by letter from DFAT and GPEI.
The vaccination campaign
GCL engaged in the vaccination campaign (in support of SDG 3 – Good Health and Wellbeing) in support of Gavi, the Vaccine Alliance. Gavi also describes itself as a public/private partnership. It is based in Switzerland and the partners are WHO (the founding partner), UNICEF, the World Bank and the Bill & Melinda Gates Foundation. Its mission is to vaccinate the world’s children against debilitating infectious diseases. Entities within the GC Network have worked with Gavi for many years. Since the beginning of 2020, GCL worked to secure commitments for Gavi’s June 2020 replenishment conference where world leaders pledge to replenish funding for Gavi. This conference occurs every five years. To this end, GCL carried out the following activities in 2020:
·encouraged individuals to contact politicians asking them to allocate part of the foreign aid budget to Gavi;
·co-hosted an online parliamentary briefing for MPs and Senators calling for continued assistance for Gavi and co-hosted a webinar and panel discussion during World Immunisation Week to highlight the importance of global immunisation initiatives; and
·made various submissions to government calling for support and financial commitments for Gavi.
The co-hosting activities were undertaken with Save the Children Australia, RESULTS Australia, the Burnet Institute and Global Health Alliance Australia.
Ms Meredith noted that in June 2020, at Gavi’s replenishment conference, the Australian Prime Minister pledged $A300m over the 2021-2025 period. The director of Gavi wrote a letter acknowledging the support of GCL in achieving this outcome. Letters acknowledging the support of GCL were also received from the Bill & Melinda Gates Foundation and from the Minister for Foreign Affairs. A Senator also acknowledged the role of GCL in Parliament.
Fight against infectious diseases campaign
GCL engaged in the fight against infectious diseases campaign (in support of SDG 3 – Good Health and Wellbeing) in support of The Global Fund to Fight AIDS, Tuberculosis and Malaria (The Global Fund). The Global Fund is an international organisation based in Switzerland and is also a public/private partnership. The idea for the Fund was originally proposed at a summit of African leaders in 2001 by the United Nations Secretary General, Kofi Annan. He proposed the fund would be dedicated to the battle against HIV/AIDS and other infectious diseases, and made the first contribution to it. The Bill & Melinda Gates Foundation was one of the first major donors to the Fund. In 2016 GC Network entities partnered with the Global Fund to host a concert at its fifth replenishment conference in Montreal. Since 2019, GCL has carried out the following activities in support of the Global Fund:
·encouraged individuals to contact politicians asking for additional aid for The Global Fund and circulated a petition calling on the Australian government to increase its commitment to The Global Fund;
·co-hosted with The Global Fund a screening of ‘Unmasked We All Breathe’, an educational documentary about the devastating diagnosis of tuberculosis for three young South African doctors;
·co-authored a letter to the Prime Minister, and the ministers for Foreign Affairs, Health and International Development and the Pacific calling for an increase in the Australian contribution to The Global Fund; and
·made various submissions to government calling for support and financial commitments for The Global Fund.
The co-signatories of the letter to the ministers were RESULTS Australia, UNICEF Australia, Plan International Australia, the Child Fund Australia, Save the Children Australia, CARE Australia, the Menzies School of Health Research, TB Forum, Australian Federation of AIDS Organisation, the Peter Doherty Institute for Infection and Immunity, and Mèdecins Sans Frontières Australia, amongst others.
Ms Meredith noted the Australian Government committed $A242 million to The Global Fund in 2019. The Global Fund acknowledged the work of GC Network entities at the 2019 Global Citizen Festival and acknowledged the role of GCL in securing the Australian commitment by letter.
Based on this largely uncontested evidence, we find the activities of GCL, together with other entities in the GC Network and in collaboration with other non-governmental organisations (NGOs), are directed to securing commitments, primarily financial commitments, from governments and wealthy philanthropists, to international organisations that carry out the projects to relieve poverty.
WHAT IS A PUBLIC BENEVOLENT INSTITUTION (PBI)?
Before considering the specific matters in dispute between the parties, it is useful to consider the law relating to what constitutes a PBI. The term is not defined in either the ACNC Act or the ITAA 1997. In Perpetual Trustee Co Ltd v Federal Commissioner of Taxation it was said that it is not a term of art, is to be understood in its ordinary English usage, and does not have a fixed meaning.[12] It has also been described as a compendious expression (Public Trustee v Federal Commissioner of Taxation[13]) but various cases have considered each of the terms separately. The word ‘public’, for example, connotes a wide audience rather than the fact that government is involved. Indeed, it has been held that an entity largely funded and controlled by government cannot be a PBI: see Ambulance Services of New South Wales v Deputy Federal Commissioner of Taxation.[14] It has also been held that it does not matter if the beneficiaries are outside Australia: see Australian Council for Overseas Aid v Federal Commissioner of Taxation.[15] The term ‘institution’ has been interpreted widely and can include any entity, including a trust but not a mere fund: see Trustees of the Indigenous Barristers’ Trust v Federal Commissioner of Taxation (Mum Shirl case).[16] In any event, the Commissioner does not dispute GCL is an institution or whether it is public. He does take issue with whether GCL is benevolent in the relevant sense.
[12] (1931) 45 CLR 224, 232 per Starke J.
[13] (1934) 51 CLR 75.
[14] (2003) 130 FCR 477.
[15] (1980) 33 ACTR 496.
[16] (2002) 127 FCR 63.

It is useful to consider the history of the PBI concept in determining what the word benevolent means. The term was introduced into federal legislation in 1927[17] and was first considered by the High Court in 1931, at the height of the Great Depression. The term came to be used in legislation to identify with more particularity the entities that would be eligible for various tax concessions that were previously available to ‘charities’ or ‘public charities’. The need arose because of the Privy Council’s decision in 1925 in Chesterman v Federal Commissioner of Taxation.[18] In that case, the Privy Council concluded the term ‘charitable’ when used in tax legislation had a legal meaning derived from the case of Commissioner’s for Special Purposes of the Income Tax vPemsel.[19] The Privy Council view was contrary to the view taken by the High Court of Australia in Chester[20] where it was held the term ‘charitable’ in relation to tax had its ordinary meaning of ‘assistance to the poor’. In other words, as a result of the Privy Council decision, the legal meaning of ‘charitable’ in Australia was held to be wider than its ordinary meaning. The Estate Duty Assessment Act 1914-1928 was subsequently amended to replace the words ‘charitable institution’ with the phrase ‘public benevolent institution,’ and the provision in the income tax legislation that gave a deduction for certain gifts was amended to refer to ‘public charitable institutions’ which was defined to include a public hospital, a public benevolent institution and [certain funds].[21]
[17] Income Tax Assessment Act 1927 (Cth).
[18] (1925) 37 CLR 317.
[19] [1891] AC 531.
[20] Chesterman v Federal Commissioner of Taxation (1923) 32 CLR 362.
[21] Income Tax Assessment Act 1927 (Cth).
The High Court considered the new language for the first time in the Perpetual Trustees case in the context of the Estate Duty Assessment Act 1914-1928. The case concerned a bequest to the Royal Naval House in Sydney which had been established to provide accommodation and recreation to ‘petty officers and lower ranks’ of the Australian navy, as well as sailors of other nations. Those seeking accommodation paid a small sum although it was noted that, in some cases, persons were provided with accommodation on giving a promise to pay on the next payday. The members of the Court considered the legislative history of the term, as well as what was described as its common understanding or ordinary usage. It was noted that the ordinary meaning of the term benevolent was wide, suggesting kindness or well-meaning, but the Court concluded the phrase had a narrower meaning when it was used in the legislation. A PBI was said to be:
·an institution organised (or promoted or conducted) for the relief of poverty, sickness, destitution or helplessness (per Starke J at 232);
·[an] institution for the relief of poverty, distress, suffering or misfortune (per Dixon J at 233); and
·[a body]…that gives relief freely to those who are in need of it and who are unable to care for themselves…the poor, the sick, the aged and the young (per Evatt J at 235).
The High Court held, by majority (Starke, Dixon and Evatt JJ), that the Naval House was not a PBI. Dixon J said the bequest was not made to a PBI because someone who used the facilities was:
not a person in distress. On the contrary he is a chosen and active protector of the nation, the object not of compassion but of admiration.[22]
[22] Perpetual Trustee Co Ltd v Federal Commissioner of Taxation (1931) 45 CLR 224, 236 per Dixon J.
McTiernan J, dissenting, did not disagree with the statement of law of the majority but did disagree on the facts. He would have found the Royal Naval House to be a PBI, explaining:
The men for whose care and assistance the Royal Naval House is established have as a class peculiar needs and disabilities, which arise from the circumstances of their calling.[23]
[23] Ibid 242 per McTiernan J.
The next case in which the High Court considered the term was Public Trustee v Federal Commissioner of Taxation.[24] In that case, the testator provided for gifts to be made to a number of named benevolent institutions and to ‘charitable or benevolent institutions benefitting, in particular, young children’ that were to be nominated by the testator’s widow. The issue was whether that part of the bequest was entitled to the exemption from estate duty on the basis it was a gift to a PBI or PBIs. The High Court held the gift in the will was not solely to PBIs because the class of ‘charitable or benevolent’ institutions potentially included entities that might be charitable but not benevolent. It followed the relevant part of the bequest was not exempt from estate duty.
[24] (1934) 51 CLR 75.
In 1942 the High Court heard and decided two cases on the same day dealing with the term. The first case, Maughan v Federal Commissioner of Taxation,[25] concerned a gift to an entity called the Boys’ Brigade Inc that provided social, physical and educational facilities for boys. The High Court held that although a social club for boys might not always be a PBI, in the circumstances of the case, where the facilities were made available to boys from poorer districts in Sydney, the entity was a PBI. The case also indicates that relief can include preventing poverty as well as providing relief where poverty exists. The second case, Lemm v Federal Commissioner of Taxation,[26] concerned a gift to establish a home for ‘aged women in straitened financial circumstances’. The home was held to be a PBI, although the central issue in that case was the fact that the home was yet to be established rather than whether the intended class of beneficiaries needed relief. It is worth noting the High Court has not considered the term since those decisions were made in 1942.
[25] (1942) 66 CLR 388.
[26] (1942) 66 CLR 399.
Since 1980 there have been a number of cases in various state and territory courts dealing with exemptions from state taxes. Some are relevant to the matter before the Tribunal. In Australian Council for Overseas Aid v Federal Commissioner of Taxation,[27] the Supreme Court of the Australian Capital Territory considered whether the Council was eligible for an exemption from Commonwealth payroll tax. The Council was a coordinating body for various member organisations (commonly referred to as an umbrella organisation) that provided overseas aid. In addition to its coordination role, the Council undertook liaison with governments and educational activities to raise awareness of the need for such aid. Connor ACJ accepted the Council was a PBI even though it was not directly involved in the provision of aid.[28] This case is discussed further below.
[27] (1980) 33 ACTR 496.
[28] This case was relied on by the AAT in Legal Aid Commission (Vic) v Commissioner of Pay-Roll Tax (Vic) (1992) 23 ATR 1148, where some of the legal services were provided by agents or contractors.
In Australian Council of Social Service v Commissioner of Pay-roll Tax,[29] the activities of the Australian Council of Social Services (ACOSS) were described as ‘advisory, informative, research and advocacy’ on matters related to social welfare. Priestley AJ (with whom Mahoney JA agreed) determined ACOSS was not a PBI because it was concerned with the ‘promotion of social welfare in the community generally’ rather than the relief of poverty and distress. One member of the Court, Street CJ, focussed on the absence of direct provision of aid but in 2014 the Full Federal Court, in The Hunger Project case,[30] was not persuaded that this approach was endorsed by the other members of the Court. The Australian Council of Social Service and The Hunger Project cases are discussed further below.
[29] (1985) 1 NSWLR 567.
[30] Federal Commissioner of Taxation v The Hunger Project Australia (2014) 221 FCR 302, [55]. This case is discussed further below.
In 1990, two cases came before the Victorian Supreme Court on the same day dealing with the term in payroll tax legislation. In Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute,[31] the Institute that provided counselling services to persons suffering from psychological conditions claimed it was a PBI for payroll tax purposes. McGarvie J held the Institute was a PBI and noted the needs of the persons in receipt of relief may be other than financial. Importantly for present purposes, his Honour also observed Perpetual Trustees ‘was decided in the context of a very different society which existed some 60 years ago’ (at p 4769) and suggested entities had to adapt ‘to the realities of obtaining funds and dispensing benevolence in the conditions of today’.[32] The Court of Appeal agreed.[33] By contrast, in Marriage Guidance Council of Victoria v Commissioner of Pay-roll Tax,[34] an organisation that only provided marriage guidance counselling was found by McGarvie J to not be a PBI as the suffering and distress of the breakdown of a marriage was part of the ‘ordinary human experience’.[35]
[31] (1990) 90 ATC 4752.
[32] Ibid.
[33] See Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute [1992] 2 VR 706.
[34] (1990) 21 ATR 1272.
[35] (1990) 90 ATC 4752, at 1277-8.
There have also been a number of cases dealing with exemptions from council rates. The Commissioner relies on these cases as authority for the proposition that a PBI cannot have independent non-benevolent purposes. These cases are dealt with below on this point.
There have also been a number of cases in the Federal Court, including Federal Commissioner of Taxation v Launceston Legacy.[36] In that case, Legacy argued it was entitled to an exemption from the Bank Debits Tax under the Debits Tax Act 1982 (Cth) because it was a PBI. Northrop J found Legacy provided relief to those widows and children who had lost a partner or parent in, or as a result of, service in a war, regardless of whether the widows and children were in ‘necessitous circumstances’. His Honour concluded Legacy was a PBI given it provided a ‘caring service, not limited to the provision of money, to persons who are in need’.[37] The Federal Court also heard a trio of cases considering whether a body performing functions on behalf of government could be a public benevolent institution for the purposes of the Fringe Benefits Tax Assessment Act 1986 (Cth): Metropolitan Fire Brigades Board v Federal Commissioner of Taxation;[38] Mines Rescue Board (NSW) v Federal Commissioner of Taxation[39] and Ambulance Services of New South Wales v Deputy Commissioner of Taxation.[40]. In the last case, Allsop J (as he then was) examined the case law on the meaning of the term in considerable detail but ultimately concluded, as the Court had done n the other two cases, that the Ambulance Service was not a PBI because it was controlled and funded by the government and fulfilled functions that were governmental in nature.[41] His Honour’s decision was affirmed on appeal in Ambulance Service (NSW) v Deputy Commissioner of Taxation.[42]
[36] (1987) 15 FCR 527.
[37] Ibid 541.
[38] (1990) 27 FCR 279.
[39] (2000) 101 FCR 91.
[40] [2002] FCA 1023.
[41] Fire and Emergency Services are now expressly recognised as DGRs under the ITAA 97 (s 30-102) and Ambulance Services are now expressly recognised as DGRs (s 30-20) and as exempt from FBTAA.
[42] (2003) 130 FCR 477.
The Tribunal has also considered the term in Re Adoption Privacy Protection GroupInc v FCT[43] and in Re Women’s Life Centre v Australian Charities and Not-for-profits Commissioner.[44] In both of those cases, the needs being met were not sufficient to make the entity a PBI.
[43] [2004] AATA 1121.
[44] [2021] AATA 500.
Perhaps the most significant case in recent times has been the Full Federal Court’s decision in The Hunger Project Australia v Federal Commissioner of Taxation.[45] That case concerned an entity that had the objective of relieving poverty, sickness, suffering, destitution and helplessness, particularly in the developing world. The organisation was part of a global network of entities administered by a head office in New York. Hunger Project Australia (HPA) claimed it was a PBI for the purposes of the Fringe Benefits Tax Assessment Act (Cth). At first instance,[46] Perram J found that directness of relief was not a requirement for an entity to be a PBI. He held that comments by Street CJ in the Australian Council of Social Service case about directness did not form part of the majority reasoning. The majority in that case had focused on the fact ACOSS was concerned with wellbeing at large and not on relieving poverty and distress. Although the activities of HPA were essentially confined to raising funds that were spent by other entities in the network, its (indirect) involvement in the relief of hunger was sufficient because the “applicant’s principal object of relieving hunger is achieved through its close relationships with The Hunger Project entities in program countries”.[47]
[45] The Hunger Project Australia v Federal Commissioner of Taxation[2013] FCA 693 at first instance per Perram J and Federal Commissioner of Taxation v The Hunger Project Australia (2014) 221 FCR 302 on appeal per Edmonds, Pagone and Wigney JJ.
[46] The Hunger Project Australia v Federal Commissioner of Taxation [2013] FCA 693.
[47] Ibid [126].
The appeal by the Commissioner of Taxation to the Full Federal Court was unsuccessful.[48] The joint judgment of the Full Court is significant for three reasons. First, it held there was no requirement for a PBI to directly dispense relief; second, it held the meaning of the expression PBI was not fixed; and third, it accepted the High Court’s decision in Federal Commissioner of Taxation vWord Investments,[49] albeit a case dealing with whether the relevant entity was a charity rather than a PBI, had a bearing on the matter before the Court.
[48] Federal Commissioner of Taxation v The Hunger Project Australia (2014) 221 FCR 302 per Edmonds, Pagone and Wigney JJ.
[49] (2008) 236 CLR 204.
In relation to whether there was a requirement for a PBI to provide relief directly, Perram J had concluded:
I do not accept that it is a requirement that a PBI engage directly in the activities making up the object of its benevolence.[50]
[50] The Hunger Project Australia v Federal Commissioner of Taxation [2013] FCA 693, [126].
The Full Federal Court agreed with Perram J and stated:
None of the Commissioner [of Taxation]’s arguments supports the imposition of a definition or test that requires a PBI to directly dispense relief. There is no good reason to read such a requirement or limitation into the ordinary meaning of that expression.[51]
[51] Federal Commissioner of Taxation v The Hunger Project Australia (2014) 221 FCR 302, [26].
The significance of this part of the decision is discussed further below.
In relation to the ordinary meaning of the term PBI, the joint judgment noted the Perpetual Trustee case had been decided in 1931, and it was not appropriate for the term to be fixed in time. The Court explained:
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) 50 ATR 496 at [40]-[42].[52] [Emphasis added]
[52] Ibid at [38].
Perram J and the Full Federal Court acknowledged the High Court’s decision in Word Investments focused on whether the entity was a charity. The reasoning in that case was still regarded as significant because the High Court accepted an entity could be a charity even though it did not carry out any charitable activities itself. The Full Federal Court noted in The Hunger Project:
The majority [in Word Investments] eschewed an approach to the question that focussed entirely on the form an organisation took, rather than its substance. They reasoned it would be unsound to distinguish between a case where a company with charitable objects gave its profits to other organisations which spent them on those charitable objects, and the situation where a company with the same charitable objects organised itself into two divisions, one which employed the company’s assets to make a profit and the other which spent the profits on those objects.[53]
[53] Ibid [19].
The Full Federal Court concluded that according to the ‘ordinary contemporary meaning or understanding’ of the term, HPA was a PBI even though it did not provide relief directly.[54]
[54] Ibid [67].
THE COMMISSIONER’S ARGUMENTS IN THIS CASE
The Commissioner argues GCL is not eligible to be registered as a PBI on the basis that:
·GCL has an independent purpose, or purposes, of education and/or advocacy that prevent it from being a PBI (the purposes sub-issue); and
·GCL does not provide relief directly, or through related entities, to those in need and this prevents it from being a PBI (the provision of relief sub-issue).
Both of these matters raise issues related to the purpose or purposes of GCL and its activities (ie what it actually does). These issues are interrelated because the activities and history of GCL are relevant in determining its purpose (or purposes).
The first sub-issue: Does GCL have a benevolent purpose?
The Commissioner argues the test for determining whether an entity is a PBI is whether the entity has a main purpose of relief of poverty or need. The Commissioner argues that if the entity has any other purposes, those purposes may only be incidental or ancillary to the main purpose. In the original decision and in the objection decision the Commissioner accepted GCL does have ‘concrete objects of benevolence’ but concluded benevolence was not its main purpose. The Commissioner argues GCL has several independent purposes, including education and/or advocacy. That means relief of poverty is not the main purpose, which the Commissioner says is fatal to the present application.
It is useful to consider the case law concerning purpose in relation to PBIs. First, it is important to note the High Court in Perpetual Trustees did not refer to ‘purpose’. The test propounded in that case was whether the entity was ‘organised’ for the relief of poverty, sickness, destitution or helplessness (per Starke J at 232) or ‘promoted’ or ‘conducted for’ the relief of poverty, distress, suffering or misfortune (per Dixon J at 232-3). In Public Trustee, Williams J simply referred to ‘purpose’ (at 411). In Maughan, McTiernan J (at 395) referred to the ‘dominant object’ of the entity and Williams J (at 398) referred to the ‘main object’.
The ordinary meaning of ‘main’ in relation to an object or purpose does not preclude an entity from having other objects or purposes, provided the benevolent purpose was predominant. This was the approach taken in Taxation Case 101 (the Hobart City Mission case)[55] where the entity had both a religious purpose and a purpose of relieving poverty. The Board of Review found it to be a PBI, stating:
we are satisfied that the relief work is not merely ancillary and subordinate to the religious aspect, but is at least of equal importance for the purposes of this case.[56]
[55] (1945) CTBR 677.
[56] Ibid.
Another case that supports this ordinary meaning of ‘main’ is Cairnmillar where the existence of other (minor) purposes was not fatal. McGarvie J considered the activities of the Institute and concluded the predominant purpose was the treatment by psychotherapy of psychological disorders. The fact that some individuals received traditional marriage guidance counselling did not prevent that conclusion.

An alternative view, favoured by the Commissioner, is that the ‘main purpose’ requirement means that any other purpose must be incidental or ancillary to the benevolent purpose. On that view, an independent non-incidental purpose would be disqualifying. The conception of ‘main purpose’ under this alternative view appears to come from charity law and in particular from cases dealing with charitable bequests, where a gift to both charitable and non-charitable purposes would be invalid.[57] This gave rise to the notion of ‘exclusively charitable purposes’, although different terminology has been used in the cases. In Stratton v Simpson,[58] for example, Windeyer J (at [10]) refers to the ‘main object’; in Navy Health Ltd v Federal Commissioner of Taxation,[59] Jessup J noted (at [59]) that the purposes of a charitable institution must be ‘wholly charitable’ while the High Court in Word Investments used the phrase ‘main, dominant or predominant’: at [17] per Gummow, Hayne, Hayden and Crennan JJ.
[57] See, for example, Attorney-General v Adams (1908) 7 CLR 100.
[58] (1970) 125 CLR 138.
[59] [2007] FCA 93.
Windeyer J in Stratton v Simpson discussed the different meanings that could be used:
In itself the phrase ‘main object’, as used in legal writings, is ambiguous: but in any particular case the context or the topic ordinarily shews in which of two senses it is used. Sometimes it means the principal object of an institution having also secondary objects or activities which, although of less importance, are capable of being lawfully pursued independently of and without their having any essential bearing upon the pursuit of the main object. On the other hand the words can postulate a dominant object, other objects being all incidental, subservient and ancillary, only lawfully to be pursued as conducive to promoting the main object.[60]
[60] (1970) 125 CLR 138, [8].
Windeyer J preferred the latter meaning in the context of that case. This principle is now expressed in the Charities Act that defines a charity to mean an entity ‘all of the purposes of which are charitable purposes; or purposes that are incidental or ancillary to, or in furtherance of the [charitable] purposes’.[61] While a PBI is a type of charity, it is important to distinguish between cases and principles that apply to determining charitable status on the one hand and those that apply to determining PBI status on the other. Although it may be appropriate to consider charity cases in interpreting the term PBI – as we have done - it must be done with caution and mindful of the differences in the concepts. The fact that charitable purpose or purposes must be exclusively charitable does not mean a PBI must have exclusively benevolent purposes.
[61] Charities Act 2013 (Cth), s 5(b).
The issue about independent purposes in the PBI context appears to have first arisen in Maclean Shire Council v Nungera Co-operative Society Ltd.[62] That case dealt with the entitlement to an exemption from local rates that was available to PBIs. The Society provided housing for families from the aboriginal community that were mostly unemployed. The Council conceded the Society did have benevolent objects but it argued the Society was nevertheless not a PBI because it was permitted under its constitution to distribute any surplus on winding up to any ‘charitable purpose or undertaking’. Handley JA (with whom the other judges agreed) observed:
It is well established that the existence of such independent and collateral objects and powers can result in an institution losing some status it would otherwise possess.[63]
[62] (1995) 86 LGERA 430.
[63] Ibid 432.
Interestingly, none of the cases his Honour referred to are PBI cases. Handley JA then noted ‘the current position in Australia of Aboriginals is such that any valid charitable trust for their benefit must also be for public benevolent purposes’.[64] In relation to the relevant power, Handley JA concluded the correct interpretation of the constitution as a whole was that the power was ‘dependent or incidental’.[65]
[64] Ibid 434.
[65] Ibid.
The Commissioner also relied on some other cases concerned with exemptions from council rates in different states and territories. In only one case was it held there were independent non-benevolent objects – and this appeared to turn on the drafting of the constitution of the entity. Bodalla Aboriginal Housing Co Ltd v Eurobodalla Shire Council[66] dealt with an exemption under the Local Government Act 1983 (NSW). The exemption in question referred to a ‘public charity or public benevolent institution’ and much of the judgment is concerned with the term ‘public charity’. There were numerous objects referred to in the memorandum of association. Preston CJ at first instance pointed out there was no ‘chapeau specifying an overarching object of relief of poverty etc’[67] (as there had been in Maclean) and on that basis several objects, when read in isolation, were non-benevolent. This meant the company was not a PBI. Preston CJ did note the objects were amended in 2011 and that for years afterwards the Council had accepted the company was a public charity.[68] In the decision of the Land and Environment Court of New South Wales in Gumbangerrii Aboriginal Corporation v Nambucca Council,[69] Stein J declined to read the objects disjunctively despite the absence of an overarching clause and concluded all of the objects were benevolent. In Northern Lands Council v Commissioner of Taxes,[70] the Northern Territory Court of Appeal also concluded that, looked at holistically, all the objects in the constitution were incidental to the benevolent purpose. Our analysis of the authorities suggests we should not apply an ‘exclusivity of purpose’ test in relation to PBIs. It is interesting to note that when the Commissioner of Taxation was responsible for determining PBI status before arrangements changed in 2012 he took the view that ‘any other purposes and operations must be incidental to the public benevolence or of minor extent and importance’.[71]
[66] (2011) NSWLEC 146. An appeal to the New South Wales Court of Appeal on a different point was refused: see [2012] NSWCA 408.
[67] Ibid [69].
[68] Ibid [73].
[69] [1996] NSWLEC 103.
[70] [2002] NTCA 11.
[71] Australian Taxation Office, Taxation Ruling TR 2003/5 Income Tax and Fringe Benefits Tax: Public Benevolent Institution at [22]).
It may not be necessary to reach a concluded view on the meaning of the term ‘main’ purpose as it may be GCL has only one purpose. It is therefore necessary to consider the purpose or purposes of GCL.
GCL’s purpose
In order to determine the purpose or purposes of an entity it is necessary to examine its constituent documents and its activities (ie, what it says it does in its constitution, and what it actually does). This is the general approach for entities claiming to have charitable purposes (see Word Investments) although in relation to PBIs the focus is more often on what the entity does. GCL argues it has one purpose: the relief of poverty. The Commissioner contends GCL has additional, independent educational and/or advocacy purposes.
The constitution of GCL provides:
Clause 2.3: The principal object of the company is to provide benevolent relief of poverty, sickness, destitution, distress, suffering and helplessness to persons in need with a particular emphasis on bringing an end to extreme poverty globally by 2030, in particular by:
a) providing funding for, cooperating and collaborating with other bodies and organisations both in Australia and globally having objects in whole or in part similar to the objects of the company; and
b) educating and empowering communities to help effect change to international policies and systems and raise global awareness of the issues and matters affecting persons living in extreme poverty;
c) helping members inform themselves on global and domestic poverty issues and their solutions, human rights and helping members build skills to communicate effectively with decision makers and members of the public;
d) mobilising resources for research and development;
e) providing grants and scholarships to individuals who are working to end extreme poverty;
f) providing financial support and facilitating youth advocate programs, symposiums, workshops and conferences which train young people to take action in their communities to relieve extreme poverty;
g) advocating for development assistance for programs that promote the end of global poverty; and
h) conducting and funding strategic media and public awareness raising activities to educate members of the broader community.
GCL argues its only purpose is that expressed in the opening words of the clause (ie, to provide benevolent relief), and all of the subclauses are ‘in aid of’ this purpose as evidenced by the word ‘by’ in the opening paragraph.
GCL’s original constitution stated its purpose was ‘raising awareness and encouraging action for the relief of global poverty in Australia and overseas by, without limitation:
(a)educating people principally in Australia about global poverty and the movement to end global poverty;
(b)empowering people principally in Australia to take action on global poverty including making donations and volunteering; and
(c)encouraging and assisting people in other countries to undertake the activities in [(a) and (b)].’
The original constitution is significant because the Commissioner argues ‘raising awareness and encouraging action’ (ie, education and advocacy) represent the true purpose(s) of GCL. GCL was registered by the Commissioner on 3 December 2012 with the subtype of advancement of education, and from 1 January 2014 with the subtype of advancing education (reflecting the introduction of the Charities Act). GCL adopted a new constitution in 2018 as part of a restructuring that Mr Moss said in his evidence had commenced with the release of the SDGs in 2015. Mr Moss stated the restructuring commenced after the board of GCL decided to update its objects to reflect its mission of ending global poverty by 2030. (Not coincidentally, that is the same mission as that of its parent entity GPP US.) Mr Moss added the board of GCL also decided to distil GCL’s mission into an object. It is possible the decision to adopt new objects may also have been influenced by the fact entities that pursued benevolent purposes indirectly were more likely to be recognised as PBIs in Australia following the Full Court’s decision in The Hunger Project case in 2014. However, we are not satisfied the evidence establishes that was the motivation for the change to the constitution.
Despite the different formulation of its purposes, GCL contends its purpose has always been the relief of poverty and this consistency of purpose can be traced back to the predecessor entity, the Global Poverty Trust. GCL notes it initially operated by showing a film about global poverty, but its focus shifted in about 2011 to staging high-profile events to coincide with meetings of world leaders. Since its incorporation, GCL has sought to influence and enlist public opinion to obtain financial commitments from governments and philanthropists to fund overseas aid projects in particular. As Downes J observed in Aid/Watch Inc v FCT[72] when the case was in the AAT: ‘Aid is fundamentally associated with the relief of poverty’.[73] Although Aid/Watch was not a PBI case, Downes J observed there was a relationship between aid and poverty:
There is no particular emphasis in Aid/Watch’s formal objectives on relieving poverty. The emphasis is rather on respecting the rights of aid recipients and including them in the process. However, it may be taken that the object of relieving poverty is so fundamental to aid that its presence as a major objective of Aid/Watch needs no express statement.[74]
[72] (2008) 71 ATR 386.
[73] Ibid [4].
[74] Ibid [23].
It is also important to look at what GCL does and, in particular, what activities it undertook at and before the date of its application to the ACNC to change its subtype. The GC Model described above was said to be designed to create public awareness, often through high-profile events, but it is also concerned with mobilising that awareness to put pressure on governments and major philanthropists (such as the Bill & Melinda Gates Foundation) to make specific and targeted financial commitments to various identified aid projects. This methodology, and the thinking behind it, was described by Michael Sheldrick, Chief Policy and Government Affairs Officer at GPP US (and formerly Manager of the End of Polio campaign at GCL in 2011) in evidence as follows: ‘we have to give [politicians] permission to spend what is on the end our money’. The high-profile events put on by entities in the GC Network – for which tickets could (at least hypothetically) be sold and monies raised – are an important part of the GC Model. The campaigns undertaken by GCL since its incorporation, but especially over the past 4-5 years, are all concerned with improving health outcomes in the developing world as part of the mission to eliminate extreme poverty by 2030.
An issue that was not directly addressed by the parties in argument is whether the educational/advocacy aspects of the GC Model are ‘purposes’ or merely ‘activities’. The difference between purposes and activities is not always clear. A purpose or object is something that one strives toward or the reason that something exists. The Macquarie Dictionary defines purpose as ‘the object for which anything exists or is done, made, used, etc; an intended or desired result; end or aim’.[75] An activity is defined as the state of action; or doing.[76] In terms of a charity, an activity is what the entity actually does day-to-day and over time.
[75] Macquarie online dictionary, definition of ‘purpose’, accessed 04/08/2021.
[76] Macquarie online dictionary, definition of ‘activity’, accessed 04/08/2021.
We are satisfied the evidence of Ms Meredith, Mr Moss and Mr Sheldrick establishes the educational and advocacy activities of GCL are what GCL does to achieve its purpose of relieving poverty. In that sense, we are satisfied GCL has only one purpose - the relief of global poverty - and that it engages in educational and advocacy activities to achieve that purpose. This conclusion is consistent with the reasoning in Word Investments. As we have already explained, that case was concerned with charitable rather than benevolent purposes but it appears to warn against treating activities as purposes. The High Court rejected the characterisation of Word’s purpose as ‘profit-making’ saying:
It is therefore necessary to reject the Commissioner's arguments so far as they submitted that Word had a ‘commercial object of profit from the conduct of its business’ which was ‘an end in itself’ and was not merely incidental or ancillary to Word's religious purposes. Word endeavoured to make a profit, but only in aid of its charitable purposes. To point to the goal of profit and isolate it as the relevant purpose is to create a false dichotomy between characterisation of an institution as commercial and characterisation of it as charitable.[77]
[77] Commissioner of Taxation v Word Investments (2008) 236 CLR 204, [24].
However, even if education/advocacy are viewed as purposes, we are satisfied they are incidental and ancillary to the main purpose being the relief of poverty. We will have more to say about that relationship below.
The second sub-issue: the provision of relief?
The Commissioner contends the activities of GCL do not relieve poverty – either directly, or indirectly through related entities.
Prior to 2014 it was generally accepted a PBI had to directly provide benevolent relief. This principle arose as a result of the decision of the New South Wales Court of Appeal in Australian Council of Social Service v Commissioner of Pay-roll Tax (NSW). The decision of the Full Federal Court in The Hunger Project case rejected that position. The Court held the ordinary contemporary understanding of a PBI was broad enough to encompass an institution that provided relief indirectly, in that case via related or associated entities.
The issue here is not with the recipients or targeting of the relief but with what GCL actually does. Some of the decided cases failed because the target group was not ‘in need’ or was too broadly identified to be limited to those in need. This was the case in Perpetual Trustees v FCT; Australian Council of Social Service v Commissioner of Pay-roll Tax (NSW), Marriage Guidance Council of Victoria v Commissioner of Pay-roll Tax (Vic); Re Adoption Privacy Protection Group Inc v FCT, and in Re Women’s Life Centre v Australian Charities and Not-for-profits Commissioner. The issue here is whether the activities of GCL provide relief, albeit indirectly, to those living in extreme poverty.
The Commissioner describes the relationship between the activities of GCL and the provision of relief as ‘too abstract’ and ‘too remote’. He argues GCL does not provide relief because:
·there is no evidence of a causal link between the activities of GCL and the provision of benevolent relief; and
·there is an absence of the closeness of relationship contemplated by the decided cases between GCL and those entities that actually provide relief.
GCL argues there is no requirement for a PBI’s activities to be demonstrated to provide relief to people in need nor in any way to prove effectiveness, but in any event contends there is evidence of the impact of its activities, including third party validation. GCL also contends there is no requirement to prove specific types of relationships in order to satisfy the requirements for a PBI.
There are but a handful of authorities that deal with this issue. The most significant of these is the Full Federal Court decision in The Hunger Project, but it is also necessary to consider Australian Council for Overseas Aid and the recent interlocutory decision in Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission.[78]
[78] [2021] FCA 435.
In The Hunger Project case, HPA was engaged in fundraising and was part of a world-wide group of entities operating under the name ‘The Hunger Project’. The group included entities in countries in the developing world (project countries) and in the developed world (partner countries). The Federal Court was asked to consider whether there was a requirement of direct provision of relief. HPA did not provide relief directly but rather raised monies that were used by other entities in the group to relieve poverty. In Australian Council of Social Service, the judge at first instance held ACOSS was not a PBI because it did not provide relief directly.[79] On appeal,[80] Priestley JA (with whom Mahoney JA agreed) was urged to find that less direct activities could be considered as sufficient for the Council to be PBI. Although Priestley JA commented that ‘there may be some force in the submission’, he did not need to consider it fully because he concluded the Council was concerned with ‘promotion of social welfare in the community generally’. This conclusion seems to be informed not by what the Council did but rather by the fact it did not target only those who were in poverty or distress. The judgment lists 45 publications described as ‘dealing with issues of general community concern’ eg Freedom of Information; manpower issues; population issues; the right to voluntary sterilisation and urban and regional development.[81] On the other hand, Street CJ did agree with the trial judge that there was a requirement of direct provision of assistance.
[79] Australian Council of Social Service v Commissioner of Pay-roll Tax (NSW) (1982) 13 ATR 290 per Rath J.
[80] Australian Council of Social Service v Commissioner of Pay-roll Tax(NSW) (1985) 1 NSWLR 567, Court of Appeal.
[81] Ibid 571-4

In The Hunger Project case at first instance, Perram J held the majority in the Australian Council of Social Service case did not conclude direct relief was necessary. He also held that considering the ordinary meaning of the term, there was no requirement for a PBI to provide relief directly. Perram J considered the evidence that monies raised in Australia would be transferred to other members in project countries who would engage in the direct charitable activities, although there was no evidence or inquiry as to how the other entities applied the monies. Perram J concluded HPA’s ‘principal object of relieving hunger is achieved through its close relationships with the Hunger Project entities in program countries’.[82]
[82] The Hunger Project Australia v FCT [2013] FCA 693 at [126].
The Full Federal Court agreed with Perram J. The joint judgment explained:
None of the [Commissioner of Taxation’s] arguments supports the imposition of a definition or test that requires a PBI to directly dispense relief. There is no good reason to read such a requirement or limitation into the ordinary meaning of that expression.[83]
[83] Federal Commissioner of Taxation v The Hunger Project Australia (2014) 221 FCR 302, [26].
According to the Full Court, a PBI is an institution that:
conducts itself in a public way towards those in need of benevolence however that exercise of benevolence may be manifested.[84] (emphasis added)
[84] Ibid [66].
Importantly for present purposes, the joint judgment said the fact that HPA ‘does not itself directly give or provide that relief, but does so via related or associated entities is no bar to it being a PBI’.[85]
[85] Ibid [67].
In an earlier case, Australian Council for Overseas Aid, it was held that the Council was a PBI even though it did not provide aid directly. The activities of the Council were accepted as being ‘co-ordination of member organisations, liaison with government and development education’.[86] Connor ACJ said overseas aid involved a number of actors and explained:
these days overseas aid may often involve quite intricate dealings with government at home and abroad as well as with various semi-government and other institutions both here and overseas.[87]
[86] (1980) 33 ACTR 496, [18].
[87] Ibid [19].
Connor ACJ also noted the members of the Council were ‘predominantly givers of aid to poor persons overseas’[88] although there is no discussion of the causal link between the activities of the Council and the direct provision of aid. His Honour also stated ‘the Council and its members should be looked at as a whole enterprise which is predominantly benevolent and of which [ACOA was] an integral part’.[89] His Honour concluded:
I do not see anything in the Perpetual Trustee case (supra) which runs counter to the proposition that an institution may promote or be organised for the relief of poverty even though it performs only one of a number of several steps in the benevolent process, provided it is clear that the relation of that institution to the other institutions involved in the process is such as to show they have a common benevolent purpose, albeit they contribute to it in different ways.[90] (emphasis added)
[88] Ibid [18].
[89] Ibid [19].
[90] Ibid [20].
These two cases are clear authority for the proposition that relief can be provided by a PBI indirectly. In both cases it was accepted others would provide the relief, although few details are provided of how that would occur. However, the cases do not suggest it is necessary to require proof of the link between the activities of the entity and the provision of relief. Nor are the cases prescriptive about the relationship between the relevant entities. In the Australian Council for Overseas Aid case, the entity was the coordinating entity for its members and in The Hunger Project case the entity was a member of a global organisation, based in the United States. In The Hunger Project case, the Court spoke of an entity conducting ‘itself in a public way towards those in need of benevolence however that exercise of benevolence may be manifested’ and in Australian Council for Overseas Aid, Connor ACJ said the relationship between the parties should be one that shows they have ‘a common benevolent purpose’.
One further case should be mentioned. In Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission, an interlocutory application in respect of costs, Thawley J commented:
The applicant has a difficult case for falling within the meaning of [PBI]….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 PBI.[91]
[91] [2021] FCA 435, [26].
GCL pointed out the comments by Thawley J were made without the benefit of full argument on the meaning of the term PBI. Even so, his Honour’s comments are undoubtedly correct. In the case where the entity does not provide relief directly but relies on providing relief indirectly, there is likely to be a spectrum and it is possible the activities of an applicant will be such that it is not possible to say the entity is ‘organised’ for, or ‘concerned in’ or ‘promoting’ the relief of poverty etc. But we are satisfied that is not the case here.
As previously noted, several cases have spoken of the need to consider the contemporary meaning of the term PBI. For example, the Full Federal Court in The Hunger Project case commented:
It is unlikely that global aid networks comprising separate fundraising entities such as the Hunger Project were prevalent when Perpetual Trustee was decided. Even if it was the case that the common understanding of a public benevolent institution in 1931 involved the institution directly dispensing relief, we can see no reason why that common understanding may not have changed over time to encompass organisations that may be structured in ways that separate fund raising entities from entities that dispense relief or aid using those funds.[92]
[92] Federal Commissioner of Taxation v The Hunger Project Australia (2014) 221 FCR 302, [39].
The need to adopt a contemporary meaning of the notion of PBI is particularly relevant in the context of international aid and assistance, whether that be humanitarian assistance or developmental assistance. Indeed, the Commissioner has recognised that development assistance can amount to providing relief in the PBI context in the Commissioner’s Interpretation Statement, Public Benevolent Institutions:
In an international development and relief context, people in receipt of relief or humanitarian assistance work (work which is provided during and in the aftermath of humanitarian crises), will generally be considered “people in need”. Additionally, people who are in receipt of development assistance will also be considered “people in need”, where that assistance is provided to necessitous people in developing countries. Development assistance is understood as being activities that improve the long-term well-being of people in developing countries, which build their capacity and provide long-term sustainable solutions to needs stemming from poverty and distress. Development assistance is thus preventative in that it stops such needs recurring. It is equally “relief” in the PBI context because it relieves the needs of the people assisted.[93]
[93] Australian Charities and Not-for-Profits Commission, Commissioner’s Interpretation Statement, Public Benevolent Institutions, para 5.6.6.
Equally, it is necessary to consider contemporary means of delivering relief. The uncontradicted evidence in this case established it is unlikely that any one organisation can provide relief for the sort of problems identified by the SDGs. It may sometimes happen that a group of formally related entities act to deliver relief (such as occurred in The Hunger Project case) but it is increasingly likely that relief will be provided by a variety of entities working with governmental and other NGOs to achieve positive results, using advocacy and awareness-raising as an integral part of that process to achieve their goals. One example of this is the co-operation between various entities in various countries working on a project to eradicate polio (described above).
GCL relied on two experts in the field of international development assistance to provide evidence about the way that issues such as global poverty are increasingly dealt with by NGOs. Paul Ronalds, CEO of Save the Children (Australia), identified the importance of advocacy to government as part of the approach of NGOs to tackle poverty in his witness statement:
10. Poverty is multi-dimensional, so strategies to tackle it also need to be multi-faceted. Direct relief activities such as food distribution or delivering education are a means of addressing one aspect of poverty; however, these activities alone are not sufficient to eliminate poverty or relieve poverty for all. They need to be paired with meaningful changes in government policy and legislation at a national and international level.
…
16. Other international NGOs also engage in advocacy as a tool to relieve poverty. For example, international NGO CARE International states that advocacy and influencing is “at the heart of CARE’s program strategy – otherwise we couldn’t achieve our aims of tackling the structural causes of poverty and inequality, and scaling up impact beyond the communities where CARE and our partners work directly”.
Mr Ronalds in his witness statement also spoke about the use of what he described as ‘celanthropists’ in events such as the Live Aid concert in 1985 in raising awareness of poverty and generating tangible outcomes. He was also asked to comment on the activities of GCL. He said:
23. In my experience, the types of advocacy activities undertaken by Global Citizen are effective to relieve poverty when considered collectively. A campaign to achieve policy change should consist of a number of mutually reinforcing activities, such as engagement with policy makers and community education and mobilisation. The advocacy activities undertaken by Global Citizen therefore should not be considered in isolation when assessing whether they are effective to relieve poverty, as to do so would obscure their cumulative effect.
24. For example, informing and encouraging people to learn about the UN Sustainable Development Goals, and equipping them with the knowledge and inspiration to act to achieve them, is unlikely by itself to result in relieving poverty for individuals, however when performed in coordination with other actions it does have the potential to have tangible impacts.
25. In the same vein, encouraging citizens to take action by sending tweets, making phone calls, writing emails and showing up in person to volunteer, rally and advocate to apply pressure on world leaders (including corporate and government leaders) to make commitments addressing the causes of extreme poverty including gender equality, food security, education, the environment, global health, citizenship, and sanitation, is a traditional method of advocacy which, when viewed holistically alongside other advocacy activities can contribute to relieving poverty.
26. I believe that meeting with parliamentarians and world leaders to advocate in person for specific commitments toward the achievement of the UN Sustainable Development Goals is a particularly persuasive means of promoting change that will relieve poverty. Civil society organisations can “affect the formulation of poverty reduction strategies by building a ‘working relationship’ with their respective governments”.
27. ... I believe, based on my experience …, that meeting with parliamentarians and leaders face to face increases the likelihood that they will make commitments that will have tangible results to relieve poverty, such as increasing Australia’s foreign aid budget.
Mr Ronalds concluded:
31. ….. As I wrote in my book,[94] “the Make Poverty History campaign has been instrumental in placing aid volumes on the domestic agenda of governments and in international meetings of the G8, the WTO, and the UN.” Advocacy which results in increases to foreign aid can have the effect of both preventing future poverty and relieving current poverty.
[94] Paul Ronalds, The Change Imperative: Creating the Next Generation NGO (Kumarian Press, 2010).
A second expert witness, Rev Tim Costello said in his witness statement:
[1] I believe advocacy, awareness-raising and/or education of the type that Global Citizen undertakes does relieve poverty.
….
[15] Global Citizen informs and encourages people to learn about the UN Sustainable Development Goals and to act to achieve them. This is advocacy that most International Non-Government Organisations (INGOs) are also undertaking and is essential for the relief of poverty. Global Citizen’s meeting with parliamentarians and world leaders is to advocate for specific commitments to achieve these goals. Again, World Vision and most INGOs also do this type of advocacy and see it as fundamental to poverty alleviation. Global Citizen’s advocacy has also focused on the role of corporates in contributing to fundraising and corporate commitments to clean water, global vaccinations and eradication of preventable diseases like polio. This directly relieves poverty. Government and corporate contributions are the big dollars in relief of poverty compared to charities and they are also critical donors to charities.
This uncontested evidence suggests that advocacy, awareness-raising and educational activities are common methods employed by entities tackling the issue of global poverty (and other global issues).
It is therefore necessary to consider the activities of GCL and how they relate to the actual delivery of aid by others. GCL contends it applies its GC Model to secure material commitments – whether financial, or legislative, or on matters of policy – from governments and major philanthropists. In relation to financial commitments, GCL claims the funds are committed by governments and philanthropists and applied by international organisations including GPEI, Gavi and The Global Fund, and that these entities use the funds to directly address the problems of poverty. In relation to non-financial commitments, GCL argues legislative and policy changes are necessary to address the issue of global poverty and that addressing matters such as aid budgets is the only way to bring about real and sustainable change. GCL accepts it does not act alone and often collaborates with other like-minded entities, such as Rotary Australia, World Vision and Save the Children as well as with other entities in the GC Network. Its website also lists a number of ‘corporate partners’ such as Coca Cola, Cisco and YouTube.
One of the issues raised in the case was whether advocating for changes in government policy (eg, concerning levels of aid or legislative change relating to gender discrimination) would be concrete enough to amount to relieving poverty. We do not need to decide this matter because it is clear the activities of GCL go beyond mere advocacy for policy change. The activities of GCL in seeking specific financial commitments from government and philanthropists to particular projects is sufficient to satisfy this nexus. We should add there is nothing unusual in this for charities: as Rev Tim Costello and Paul Ronalds, CEO of Save the Children (Australia), said in their evidence that advocacy and awareness-raising are becoming increasingly important tools in their efforts to address issues of poverty.
GCL provided a range of evidence concerning its role in relieving poverty. Some of that evidence related to reports or statements by GCL, or entities within the GCL Network, tracking impact. This of itself is not conclusive. More importantly there is evidence in the form of letters from the international organisations – GPEI, Gavi and The Global Fund – acknowledging the role of GCL and related entities, and in two instances from government ministers. The letters from the international organisations also demonstrate a relationship with GCL that demonstrates that they have a common benevolent purpose. In those circumstances we accept GCL is ‘organised, or conducted for the relief of poverty, sickness, destitution and helplessness’ as envisaged in The Hunger Project case.[95]
[95] Federal Commissioner of Taxation v The Hunger Project Australia (2014) 221 FCR 302, [67].
CONCLUSION
We are satisfied GCL is organised for the purpose of relieving poverty. It undertakes a range of activities, together with other entities in the GC Network, and in collaboration with other entities both in Australia and overseas, so that monies are directed to international organisations that are involved in the direct delivery of aid and assistance in the relief of poverty. The role of GCL and other GC Network entities has been acknowledged by those international actors and within government. Given the reasoning evident in the modern authorities, we accept GCL can appropriately be described as an institution that is ‘organised’ for, or ‘conducted for’ or that ‘promotes’ the relief of poverty. It is therefore entitled to be registered as a charity with the subtype PBI under s 25-5(5) of the ACNC Act.
We acknowledge our decision on the law – a decision which we have concluded is required by reference to the state of the authorities – raises potentially important and difficult questions of public policy. The evidence clearly established that most large PBIs engage with the political process as a regular and indispensable part of their work because governments are invariably key players in delivering the relief that is sought. Once that reality is accepted, there is potentially a blurring of the distinction between a PBI that participates in the political process as part of its activities in providing benevolent relief and an entity that is pursuing political outcomes for their own sake. If the line needs to be more clearly defined, there may be a need for the Parliament to refine the definition of ‘public benevolent institution’ in the legislation. As we have explained, the expression was itself introduced to narrow the range of organisations that were entitled to the valuable concessions in question after court decisions made nearly a century ago.
Finally, the Tribunal wishes to recognise that the representatives of GCL acted in a pro bono capacity in this case. The Tribunal acknowledges that such actions allow important matters to be litigated.

I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of

...................SGD....................
Associate
Dated: 17 September 2021

Date(s) of hearing: 15, 16 and 17 June 2021

Counsel for the Applicant:
Ms Jennifer Batrouney AM QC

Ms Angela Lee

Solicitors for the Applicant: Arnold Bloch Leibler

Counsel for the Respondent:
Ms Diana Harding QC

Ms Melanie Baker

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	15, 16 and 17 June 2021
Counsel for the Applicant:	Ms Jennifer Batrouney AM QC Ms Angela Lee
Solicitors for the Applicant:	Arnold Bloch Leibler
Counsel for the Respondent:	Ms Diana Harding QC Ms Melanie Baker
Solicitors for the Respondent:	Australian Government Solicitor