- The Commissioner recognises the unique situation of Australia’s Indigenous peoples and recognises their disadvantage. The Commissioner notes that the disadvantage suffered by Indigenous peoples is widely recognised and acknowledged, including by Australian governments, parliaments and the courts. It is acknowledged that this situation of Indigenous disadvantage may change in the future, but the current situation is likely to continue for some considerable time.
- For the purpose of eligibility for registration as a charity under s.25-5 of the Australian Charities and Not-for-profits Commission Act 2012 (ACNC Act), an organisation with the purpose of addressing Indigenous disadvantage is accepted as coming within the first head of charity: relief of poverty or impotence, depending on the circumstances.
- Where the organisation is addressing Indigenous disadvantage, as the relief of poverty, there is no need to meet the public benefit test.
- Where the organisation is addressing Indigenous disadvantage, as the relief of impotence, there is a presumption of meeting the public benefit test.
- After the commencement of the Charities Act 2013 (Charities Act), the recognition of Indigenous disadvantage will continue. An organisation with the purpose of addressing Indigenous disadvantage will then be registered with the purpose of ‘advancing social or public welfare’, unless the organisation seeks registration for another charitable purpose.
- It is not necessary for the charity to use the language of ‘Indigenous disadvantage’ where that purpose is clear.
- In this context, the archaic term impotence is considered to now include ‘…beyond sickness and disability, the underprivileged, the vulnerable, the dependent and those without family come under this head of charity.5’
- The Commissioner’s reasoning for this recognition is based on widespread public acknowledgement of Indigenous disadvantage in Australia by governments, parliament, the courts and international organisations. The evidence of this acknowledgement includes, for example:
(a) The National Indigenous Reform Agreement, agreed by the Council of Australian Governments in November 2008, which commits all jurisdictions to achieving the targets in the Closing the Gap strategy. The targets relate to Indigenous life expectancy, infant mortality, early childhood development, education and employment. Data from the Australian Bureau of Statistics shows a significant gap in these critical areas between the Indigenous and non-Indigenous population6.
(b) The Preamble to the Native Title Act 1993 (Cth) states
‘[A]s a consequence [of dispossession of their lands], Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.’
(c) The position of the Aboriginal and Torres Strait Islander Social Justice Commissioner was created by the Federal Parliament in December 1992 in response to the extreme social and economic disadvantage faced by Indigenous Australians. The Commissioner’s role includes reviewing the impact of laws and policies on Indigenous peoples, providing annual reports on Indigenous social justice and native title issues, promoting an Indigenous perspective on issues and monitoring the enjoyment and exercise of human rights for Indigenous Australians.
(d) The courts have long recognised the particular disadvantage suffered, including systemic disadvantage7. One example of a court finding is in the Indigenous Barristers’ case8 when the Federal Court accepted as a public fund for the relief of persons in necessitous circumstances, a trust which had the purposes of ‘the relief of such poverty, suffering, helplessness, misfortune or other disability of indigenous persons as may constitute an obstacle in the way of their being able to practise at the New South Wales Bar.’ This decision explicitly did not rely on poverty as an element of the disadvantage it found to be suffered by Indigenous Australians9.
(e) Australia has ratified various international human rights instruments which have particular application to Indigenous Australians, including the International Convention of the Elimination of all forms of Racial Discrimination (CERD); and the United Nations Declaration on the Rights of Indigenous Peoples (DRIP) which Australia affirmed on 3 April 2009 – several of its articles are relevant to the functions of the ACNC10.
(f) The United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people, Professor James Anaya, visited Australia between 17 and 28 August 2009 to report on the situation of Indigenous people in Australia. In his report, Professor Anaya states “[h]aving suffered a history of oppression and racial discrimination… Aboriginal and Torres Strait Islander peoples today endure severe disadvantage compared with non-indigenous Australians.”11
- The Commissioner’s recognition of Indigenous disadvantage is relevant to establishing a charitable purpose. In order to be registered as a charity by the ACNC an organisation must still meet all the other entitlement criteria in s.25-5 of the ACNC Act, including the conditions set out in subsection (3):
(a) the entity is a not-for-profit entity;
(b) the entity is in compliance with the governance standards and external conduct standards (see Part 3-1);
(c) the entity has an ABN;
(d) the entity is not covered by a decision in writing made by an Australian government agency (including a judicial officer) under an Australian law that provides for entities to be characterised on the basis of them engaging in, or supporting, terrorist or other criminal activities.
- At least since the Pemsel12 case in 1891, there have been considered to be four heads of charity. The first head of charity is for the relief of the needs of the aged, impotent and poor. Gino Dal Pont describes the archaic term ‘impotent’ as referring to the physically weak, the disabled or the helpless but that it has a different meaning in its modern use13. Dal Pont goes on ‘…beyond sickness and disability, the underprivileged, the vulnerable, the dependent and those without family come under this head of charity14.
- The concept of ‘poverty’ also evolves with changes in society and is therefore a question of degree. Dal Pont discusses the welfare state in Australia, where the government plays a significant role in alleviating destitution, as requiring a different concept of poverty than elsewhere15. Relief of poverty has been accepted by the courts as not equating ‘to destitution or even on the borderline of destitution. Instead it connotes the notion of “going short” – an inability “to obtain all that is necessary, not only for bare existence, but for a modest standard of living”, or to achieve the status of being “self-supporting”'16. There is also recognition by courts that the relief of poverty is not merely about financial support, but a more holistic approach to assistance17.
- It is clear that certain types of disadvantage either cause or are caused by poverty, and would come within the ‘relieving poverty’ component of the first head of charity. Relevantly, there have been cases where courts were willing to infer ‘poverty’ upon Aboriginal people as a class of disadvantaged people in need of financial support, even where the stated purpose was not explicitly phrased in terms of poverty18.
- Other types of disadvantage fit within the category of ‘impotence’.
- It is necessary to distinguish whether the disadvantage fits within the ‘relief of poverty’ or the ‘impotence’ components of the first head of charity as this determines whether the public benefit test needs to be applied. As for all charities, where the charitable purpose is addressing poverty, there is no need for the organisation to meet the public benefit test. This applies to a charity addressing Indigenous disadvantage based upon poverty too.
- The disadvantage suffered by most Indigenous people is caused by or linked to ‘poverty’ as defined by Dal Pont (see paragraph 10 above). This has consequences in most spheres of Indigenous lives such as access to education, health services, housing and those areas of disadvantage identified in the Closing the Gap strategy. The disadvantage makes it more difficult to access services even where they are available, but for people living in remote communities, many services that most Australians take for granted are not available. For example, an Indigenous organisation may address Indigenous disadvantage by providing services such as a health service with a dialysis centre in a remote community or education in the form of a bi-lingual school.
- Therefore the purpose of addressing Indigenous disadvantage comes within either the relief of poverty or impotence depending on the circumstances. In most cases, by working to relieve Indigenous disadvantage an organisation will be working to relieve the associated poverty.
- Consistently with decisions on poverty which make clear it is not essential for a charity to explicitly use the term ‘poverty’, it is not necessary to use the phrase ‘Indigenous disadvantage’, to find that the purpose of the charity is addressing Indigenous disadvantage; it can be inferred from the whole circumstances19.
5. Dal Pont G, The Law of Charity 2010 edition at para 8.34.
6. Between 2002 and 2009, the Australian Bureau of Statistics estimated that:
* life expectancy for Indigenous Australians are lower than the non-indigenous population by approximately 11.5 years for males and 9.7 years for females
* Indigenous children under five died at around three times the rate of non-indigenous children (approximately 83 per cent of Indigenous deaths below age five occurred in the first year of life, and of these nearly half occurred within the first month)
* the proportion of Indigenous students achieving the minimum standard of literacy and numeracy skills decreases as the level of remoteness increases
* Year 12 completions for Indigenous Australians were 45.3 per cent, compared to 86.3 per cent for other Australians
* Around 48 per cent of Australians the Indigenous workforce-aged population are employed compared to 72 per cent for other Australians.
7. Most recently by the High Court in Bugmy v The Queen  HCA 37 (2 October 2013), where the Court noted that “Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices…” (at para 41, per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), referencing the Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage, (2011).
8. Trustees of the Indigenous Barristers’ Trust v FCT (2002) 51 ATR 495.
9. See also Re Mathew  VLR 226 at 232 where O’Bryan J found a valid charitable purpose in a testamentary gift to Douglas Nicholls ‘to be used by him in his discretion for the benefit of Australian [A]borigines’ who O’Bryan finds ‘are notoriously in this community a class which, generally speaking, is in need of protection and assistance… Australian [A]borigines comprise a class of persons analogous to those which the statutory preamble enumerates.’
10. DRIP available on www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
11. James Anaya, Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people: The Situation of Indigenous Peoples in Australia, UN Doc A/HRC/15 (4 March 2010), p5.
12. Income Tax Special Purpose Commissioners v Pemsel  AC 531 at 583.
13. Dal Pont G, The Law of Charity 2010 edition at para 8.33.
14. Dal Pont G, above at para 8.34Dal Pont G, above at para 8.7-8.8.
15. Dal Pont G, above at para 8.7-8.8.
16. Dal Pont G, above at para 8.7.
17. Dal Pont G, above at para 8.8.
18. Re Mathew  VLR 226 at 232 and in footnote 5 above and Dal Pont G, above at para 8.15.
19. Heydon JD, Leeming MJ, Jacobs’ Law of Trusts in Australia, 7th edition at para 1020.