Not-For-Profit Newsletter – May 2014
Published on May 28, 2014 by Josephine Heesh and Patricia Monemvasitis
Welcome to the May edition of our Not-for-profit Newsletter.
In this edition we report on the following issues:
- Consideration of the possible future role of the ACNC.
- The recent Privacy Law Reform.
- The dangers of using hyperlinks on your website.
- The recent Victorian case which highlighted a limitation on the availability of the religious freedom exemption to religious organisations having faith-driven objects under the Victorian Equal Opportunity Act.
- An outline of the new Commonwealth Fair Work Act workplace bullying prohibitions.
- Some good news concerning a message to China’s Elite from Bill Gates to invest in ‘poor people’.
We hope you enjoy reading this edition of our Not-for-profit Newsletter.
The Carroll & O’Dea Not-for-profit Team
ACNC in a Holding Pattern
Submissions closed on 2 May 2014, to the Senate committee considering the repeal of the Australian Charities and Not-for-profits Commission Act 2012 and the content of new legislation to replace it.
There is divided opinion amongst the Not-for-profit and Charity Sector as to whether Australian Charities and Not-for-profits Commission (ACNC) should be maintained in part or disbanded completely: in particular views diverge on whether the regulatory role it was to adopt be returned to the Australian Taxation Office (ATO) (for tax exemptions and deductible gift recipient status) and to the Australian Securities and Investment Commission (ASIC) (for corporate governance issues).
The performance of the ACNC in its first 18 months of operation has been efficient and educational. The first major deadline for all charities was 31 March 2014 by which date those with an accounting period ending 30 June 2013 were obliged to lodge their first annual information statements (AIS). Many charities have met this deadline though some have not.
In early April, the ACNC website contained a large prompt for any charities which have missed the deadline to remind them to rectify that situation. Presently there are many easy links on the site to provide this assistance.
To follow up missing AIS’s, the ACNC’s approach will be gentle initially, with issue of reminder letters sent to the address for service which the ACNC holds, but after a period of time, the ACNC will resort to enforcement remedies available under its Act, the most extreme being deregistration.
Any Charity which is unsure how to complete its annual information statement or whether it needs to do so now, may contact us for assistance.
In the repeal of the existing legislation there is a risk that the replacement law will not contain some concessions which presently apply (eg the exemptions for basic religious charities, acceptance of substituted accounting periods and acceptance of simpler accounting records).
Arguably an advantage of retaining the ACNC and its personnel is that a group of individuals with particular charity law knowledge are now constituted as a team who have worked well together for at least 2 years. If those personnel are disbanded, the gathered skills will disperse and the ATO and ASIC whose roles are far broader than the management of charities, may not give the same priority to charities that the ACNC was appearing to provide.
Author:
Josephine Heesh
Does your Charity have an ARBN? Also what impact does this have on your “basic religious charity” status? Is this an unintended consequence?
ACNC has interpreted charities with an ARBN to be entities “registered” under the Corporations Act, 2001. This has particular significance for basic religious charities, many of whom have statutory body corporate entities registered under state legislation, but holding assets in other states, and therefore holding ARBNs.
A basic religious charity cannot include any entity “registered” under the Corporations Act, 2001 or under state based incorporated associations’ legislation.
The consequence for the statutory body corporate basic religious charities with ARBNs is that they lose their eligibility for basic religious charity exemptions (ie no obligation to observe the governance rules nor to file financial reports).
Submissions have been put to the ACNC that the Commissioner has discretion to limit her interpretation of the exclusion, only to those entities “incorporated” under the Corporations Act, 2001, so that the securing of an ARBN by a statutory body corporate religious organisation will not inadvertently result in it being treated as an entity incorporated under the Corporations Act.
Author:
Josephine Heesh
Lost Charities
ACNC has advised it is aware of several charities who have, to date, made no contact with ACNC. If these “lost” charities do not identify themselves to ACNC by 23 June 2014, they will be automatically deregistered. Use this link to search for any “lost” charity.
If you require any assistance locating any of these charities or completing missing particulars we can assist.
Author:
Josephine Heesh
Privacy Law Reform
Do the Australian Privacy Principles apply to your organisation?
As of 12 March 2014 changes were made to the Privacy Act 1988 (Cth) to include a new set of Australian Privacy Principles (APPs) which replaces the National Privacy Principles and Information Privacy Principles. The APPs will regulate the handling of personal information by Australian Government agencies and businesses with a turnover of more than $3,000,000.00 and those with a turnover of less than $3,000,000.00 trading in personal information and all private health service providers.
Notwithstanding a turnover of less than $3,000,000.00, the legislation allows small businesses/not-for-profits, to opt in to the regime and therefore to become subject to the APP’s.
This would allow small businesses/not for profits the opportunity to:
- benefit from any increase in confidence and trust by the public that may be derived from operating under the Privacy Act 1988 (Cth); and
- make a public statement about being committed to good privacy practice.
The APPs consist of 13 principles which can be found in Schedule 1 of the Privacy Act 1988 (Cth) that seek to address the collection, use, disclosure and security of personal information.
In summary the 13 APP’s are as follows:
- Open and transparent management of personal information
- Anonymity and pseudonymity
- Collection of solicited personal information
- Dealing with unsolicited personal information
- Notification of the collection of personal information
- Use or disclosure of personal information
- Direct marketing (please note that the SPAM Act 2003 (Cth) should also be considered in conjunction with this principle)
- Cross-border disclosure of personal information
- Adoption, use or disclosure of government related identifiers.
- Quality of personal information
- Security of personal information
- Access to personal information
- Correction of personal information
You should now consider the practical implications of the APPs for your organisation and in doing so review as a minimum the following:
- your privacy policy and ensure that it complies with the new requirements and is readily available and easy to access, such as on your website;
- your complaints processes and how to deal with any inquiries;
- your practice in disclosing how information disclosed to overseas recipients is handled and whether the overseas recipient must comply with similar legislation;
- the method by which you obtain consent for direct marketing and implementing unsubscribe or “opt-out” facilities;
- your policy and procedure for collecting, storing, securing and updating any personal information; and
- your procedures for dealing with enquiries to update, remove or release personal information.
We would be happy to provide your not-for-profit entity with a “health check” to confirm it complies with the APPs.
Authors:
Patricia Monemvasitis
Jessica Lobow
Defamation using hyperlinks – To link or not to link – Take Care
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350
The Supreme Court (Beech-Jones J) has
- upheld a claim for defamation brought by the Plaintiff, Mr Timothy Vissher against the Maritime Union of Australia (MUA); and
- confirmed the Australian approach to liability for defamation in relation to hyperlinked material posted on a website.
In February 2011 during Cyclone Dianne, Mr Visscher, who was commanding an ocean tugboat the Hako Esteem, made the decision to anchor it at Shark Bay in the face of the cyclone. The MUA published an article on its website expressing concerns about this decision of Mr Visscher. MUA’s article contained a hyperlink to another article in the Cootamundra Herald which expanded on the concerns raised by MUA. The Herald article was found to have contained defamatory imputations.
MUA admitted that it had published its article on the website, budows NT 10.0; WOW64) AppleWebKitthe hyperlink to the Cootamundra Herald article constituted publication of the Cootamundra Herald article.
Counsel for MUA cited the Canadian authority of Crookes v Newtown [2011] 3 SCR 269 in which the majority of the Court construed hyperlinks as being a reference to the existence and/or location of content rather than a publication of that content.
The Supreme Court in this case disagreed with MUA’s argument because:
- It doubted that MUA could sustain an argument that it had not endorsed the content of the hyperlink.
- The Canadian decision was informed by the Canadian Charter of Rights and Freedoms which had no equivalent in Australia.
- UK and Australian case law reveals that the relevant approach aligns with that expressed by Hunt J in Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 where a defendant might be found liable for the publication of someone else’s defamatory material which was physically attached to the defendant’s property if the defendant was aware of the presence of the defamatory material on their property and refused to remove it and the refusal to remove would indicate consent, approval or ratification of the defamatory content.
Applying Urbanchich the Court held that publication through a hyperlink had occurred, and that, the MUA had accepted responsibility for the continued linked publication of the Cootamundra Herald article and (at the very least), adoption or promotion of the content.
This case provides a sobering warning to take care when hyperlinking to content posted on the web and be aware that hyperlinked content can be updated by third parties at anytime placing you as the publisher in an invidious position.
Authors:
Patricia Monemvasitis
Kim Leontiev
Discrimination notwithstanding genuine religious belief
Christian Youth Camps & Anor V Cobaw Community Health Services Ltd & Ors [2014] VSCA 75
The Victorian Court of Appeal recently upheld a finding of discrimination against “a Christian youth camp” that refused to provide accommodation for a “rural Victorian youth and sexual diversity project”.
Cobaw Community Health Services ran the WayOut Project, a youth suicide prevention initiative that aimed “to raise awareness about their needs and the effects of homophobia and discrimination on young people and rural communities generally”’. In 2007 the Project’s co ordinator approached the site-manager at the Phillip Island Adventure Resort, conducted by Christian Youth Camps, seeking to secure accommodation for the group at the Resort for a weekend camp “for 60 rural same-sex-attracted youth and 12 support workers”.
Christian Youth Camps was established by “The trustees of the Christian Brethren Trust”, which was “itself established by the Christian Brethren Church”.
After enquiring about the “nature of the group and its activities” the Camp’s site-manager informed the Project Manager that considering that Christian Youth Camps ‘was “a Christian organisation that supports young people”’, the WayOut Project “would be better off investigating the availability of other camps in the area.”
In 2010 the Victorian Civil and Administrative Tribunal ruled that Christian Youth Camps’ “refusal amounted to unlawful discrimination on the basis of the sexual orientation of those who would be attending the camp”.
Christian Youth Camps appealed the decision to the Supreme Court of Victoria, which delivered its judgment on 16 April 2014. One of the issues before the court was whether Christian Youth Camp’s refusal to provide rofit Newsletter.
Discrimination
Christian Youth Camps argued that “an objection to the views and opinions which would be conveyed to those attending the camp was quite different from an objection to the sexual orientation of those who would be attending”.
The Court did not accept this distinction and found that the Tribunal had not been in error in finding “there was discrimination on the basis of sexual orientation”, in contravention of the Equal Opportunity Act 1995 (Vic).
In his commentary on the decision Neil Foster from the University of Newcastle states:
‘all members of the Court of Appeal in Cobaw seem to take the view that a refusal to support an activity providing support for homosexual activity, is the same as discrimination against homosexual persons. The view that sexual “orientation” is a fundamental part of human “identity”, and the view that this must then be allowed expression in sexual activity, seems to be accepted.’
Exemption available under Victorian Equal Opportunity Legislation
The Equal Opportunity Act 1995 (Vic) contains “religious freedom exemptions”, permitting “a body established for religious purposes” to engage in prohibited conduct, where the conduct:
a. conforms with the doctrines of the religion; or
b. is necessary to avoid injury to the religious sensitivities of people of the religion.
The Court found this exemption did not apply in this case as Christian Youth Camps was not considered to be “a body established for religious purposes.”
On this point Neil Foster has commented that ‘The result of this unanimity on this point, if followed elsewhere, seems to be that even a body with explicitly faith-driven objects may be found to not be a body “established for religious purposes” if it engages in a wide range of community services which do not explicitly require a faith commitment from the recipients.’
The Court then considered whether the site-manager (an individual, not a religious body as defined under the Act) was able to rely on the “defence” of “the necessity to comply with his genuine religious beliefs or principles”.
While Redlich JA found that the site-manager’s conduct fell within this defence, which should also be available to Christian Youth Camps, Maxwell P and Neave JA did not consider the defence “applicable” as “the refusal of accommodation was not necessary for him [the site-manager] to comply with his religious beliefs.”
The CEO of Cobaw Community Health Services has commented that ‘“We’re very excited for Cobaw and for the young people that were the people that put in the original complaint…We feel [the decision] supported them and their sense of being discriminated against…”’ However, Neil Foster has noted that “The fact that the Court was split in different ways on different issues makes the precedential value of some of its comments problematic”.
Author:
Patricia Monemvasitis
The new Fair Work Act definition of `workplace bullying’
On January 1 of this year, amendments were made to the Fair Work Act 2009 (Cth) including the incorporation of a ‘workplace bullying’ definition.
The new definition:
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group
of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.’
What does `behaves unreasonably’ mean?
The Act does not provide a clear explanation of this phrase. The Fair Work Commission’s `Anti-Bullying Benchbook’ (found online) provides some articulation of examples of bullying based on the case law. It includes: `aggressive and intimidating conduct’, `belittling or humiliating conduct’, `victimisation’, `spreading malicious rumours’, `practical jokes or initiation’, `exclusion from work related events’, and `unreasonable work expectations’.
How is `worker’ defined?
The meaning of ‘worker’ applies the same interpretation of a worker found within the Work Health and Safety Act 2011 (Cth). It encompasses employees, contractors, sub contractors, an apprentice or trainee, a student on work experience, and volunteers working in a non wholly volunteer association. The intention of such a broad definition is to extend the ambit of anti-bullying measures to all persons associated with a workplace environment.
What is `at work’?
An ambiguity of the workplace bullying definition is the meaning of `at work’, and whether it encapsulates circumstances beyond the traditional workplace. The Fair Work Commission’s `Anti-Bullying Benchbook’ suggests that ‘at work’ may not necessarily refer to the `place of work’, or while the worker is actively engaged in work. The Benchbook contemplates for example, time during lunch breaks, working from home, and work trips. It remains unknown whether the definition could apply to cyberbullying conducted between workers during work hours and outside of work hours (in a work context).
GOOD NEWS
Bill Gates, writing recently in the Chinese periodical People’s Daily, has implored China’s “wealthy business elite” to invest “in poor people”. Gates argued that “Only when we help poor people break away from destitution and illness can the whole World achieve sustainable development”.
In 2010 Bill Gates and Warren Buffet hosted a “charity banquet” for China’s wealthy elite. However, it was reported that “several billionaires” refused the invitation, “apparently fearful” of an appeal to “open their wallets” for the sake of charity.
China has the world’s second highest concentration of billionaires, only after the US. In 2013 China was reportedly home to 358 billionaires. However, of the 135 countries listed in the World Giving Index, prepared by Charities Aid Foundation, China ranked 115 for monetary donations and in last place for volunteering.
A number of reasons are proffered for China’s poor philanthropy record. Shawn Shiech from the Beijing Foreign Studies University argues that before 1949 China had “a history and tradition of philanthropy”. However, in discussing the “underdevelopment” of the “philanthropy” sector, Shiech argues that “The Communist party basically nationalised philanthropy”. Shiech goes on to explain that the “mindset of the nouveau rich” against “giving their money to society” and the nature of sector regulation, with private foundations being unable to publically fundraise, have also hindered the development of a charitable sector in China.
Contrary to previous experience the last few years have seen a number of high profile Chinese business figures engaging in philanthropy. The co-founders of the “biggest e-commerce company” in China recently announced that they would establish the country’s largest charitable foundation.
In 2010 the “real estate tycoon” Yu Pengnian donated his entire $1.2b fortune to charity, although some criticised his move of not leaving his fortune to his family as “unnatural”.
Author:
Patricia Monemvasitis
