Update to Commissioner’s Interpretation Statement on Public Benevolent Institutions
The Commissioner’s Interpretation Statement (CIS) on Public Benevolent Institutions (PBIs) was updated in late September to reflect the Commissioner’s understanding of the law regarding PBIs following the Full Federal Court’s decision in Equality Australia Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2024] FCAFC 115 (Equality Australia decision). In that decision the Court found that the objects and purposes of Equality Australia to advocate for law reform and social change were not sufficiently connected to providing relief from distress of LGBTQI+ people such that Equality Australia could not be recognised as a PBI.
The updated CIS clarifies that, consistent with the Court’s view, the ordinary meaning of PBI will evolve over time. The update suggests the Commissioner is committed to taking a contemporary approach to determining whether an organisation is to be recognised as a PBI and will consider contemporary means of organisations working together and seeking to relieve benevolent needs, for example by providing relief indirectly. However, the key consideration will be whether there is a “sufficiency of connection” between the organisation’s benevolent purposes and its activities.
As noted at paragraph [54] of the CIS, “The more abstract and indirect the connection between an organisation’s activities and the relief of its beneficiaries, the less likely it will be regarded as organised, conducted or promoted for benevolent relief”. Therefore, any PBIs or organisations seeking PBI recognition should carefully consider and regularly review whether its activities are sufficiently connected to the benevolent relief intended to be provided and not too indirect, as was found to be the case in the Equality Australia decision.
If your organisation has questions or concerns in relation to its ability to obtain or maintain PBI status, please contact one of our experts.