Commissioner’s Interpretation Statements help to guide charities, the public and ACNC staff on how we understand the law that applies to charities, including explaining the law made by judges ('common law') and parliament (legislation), as well as any legal issues that may arise.

The purpose of this Interpretation Statement is to provide guidance on the application of particular aspects of charity law as they apply to Indigenous charities, including:

  • recognition of indigenous disadvantage
  • applying the public interest test; and
  • the effect of the new Charities Act 2013 (Cth) (Charities Act), which commenced on 1 January 2014, on these two issues.

This Interpretation Statement should be read together with Appendix A, which sets out the background and reasoning behind the statement. This Statement and paper were approved by the Commissioner in December 2013 in anticipation of the commencement of the Charities Act on 1 January 2014.

Recognition of Indigenous Disadvantage

[1] Gino Dal Pont gives the contemporary meaning of the archaic term ‘impotence’ as ‘…beyond sickness and disability, the underprivileged, the vulnerable, the dependent and those without family come under this head of charity.’ The Law of Charity, 2010 edition at 8.33.

The application of the public benefit test to an Indigenous charity organisation seeking registration as a charity2

2. Note: under State or Territory laws a different test of what is a ‘charity’ may apply.

Version control

Version Date of effect Brief summary of change
Version 1 – Initial Statement 01/04/2014 Initial Statement endorsed by Commissioner on 12/12/2013
Version 2 - Amendment 19/05/2015 Para 7d of the Reasoning paper attached to the CIS has been amended to remove the incorrect reference to the Indigenous Barristers case finding it was a public benevolent institution, and by inserting that it was found to be a public fund for the relief of persons in necessitous circumstances3.

3. Document last reviewed on 5/02/2019.

Appendix A – Reasoning behind Commissioner’s Interpretation Statement: Indigenous charities

The Issues

4. Note: under State or Territory laws a different test of what is a ‘charity’ may apply

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 [2013] 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 [1951] 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 [1891] 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 [1951] 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.

The application of the public benefit test to an Indigenous charity or organisation seeking registration as a charity

7. For the purpose of eligibility for registration under s.25-5 of the Australian Charities and Not-for-profits Commission Act 2012
(ACNC Act) an Indigenous charity or Indigenous organisation seeking registration as a charity which has:

7.1 - one or more of the charitable purposes in s.25-5 of the Act, and

7.2 - membership and/or beneficiaries who are described in terms of family relationship or descent from named apical ancestors because it is for a native title group or traditional owner group

will be accepted as benefiting a sufficient section of the public as required by the public benefit test.

8. From the commencement of the Charities Act 2013 (Charities Act), for the purpose of eligibility for registration under s.25-5 of the ACNC Act an Indigenous charity or Indigenous organisation seeking registration as a charity which does not fall within section 9 of the Charities Act but which has:

8.1 - one or more of the charitable purposes in s.25-5 of the ACNC Act, and

8.2 - membership and/or beneficiaries who are described in terms of family relationship or descent from named apical ancestors because it is for a native title group or traditional owner group

will be accepted as benefiting a sufficient section of the public as required by the public benefit test.

The public benefit test

Native title and traditional ownership

  1. Native title is a form of title recognised in Australian common law since the Mabo27 decision of the High Court in 1992 and led to the passage of the Native Title Act 1993 (Cth) (NTA). It is a form of property that recognises Indigenous rights and interests in land and waters of the inhabitants of a particular area before European settlement and may recognise ongoing rights and interests of their descendants. ‘The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.28
  2. Under section 62(2) of the NTA a native title application must include:
    e. a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:
    1. the native title claim group have, and the predecessors of those persons had, an association with the area; and

    2. there exist traditional laws and customs that give rise to the claimed native title; and

    3. the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;…(emphasis added).

  3. Indigenous organisations established for a native title claim group or recognised native title holders usually describe the membership or beneficiaries as the descendants of named apical ancestors who had an association with a particular geographical area. Apical ancestors are identified as a result of extensive historical and anthropological research. They will always be several generations back and cover all the known inhabitants of the particular geographical area prior to European settlement, thus making them a significant section of the public then29. The description of the native title group is of the descendants of the apical ancestors and intends to cover all living Indigenous people with native title rights and interests in the defined area.
  4. A native title group is described in these terms for the purpose of seeking recognition of its native title rights and interests under the NTA. There is similar State and Territory land rights legislation based on traditional ownership of land. For example, a traditional Aboriginal owner group in the Northern Territory will be described in terms that are consistent with the definition of a local descent group under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Importantly, the definitions used under the various pieces of land rights legislation are consistent with the Aboriginal traditional law and custom for the groups, so other Indigenous organisations (not set up to seek recognition of native title) may also use this type of group description. While the legal issues for native title and traditional owner organisations are similar, this paper focuses on native title group organisations under the NTA as these more commonly seek registration as a charity by the ACNC. It is expected that the same reasoning will apply to organisations established for traditional owner groups.

Statutory regime

  1. While native title was originally recognised at common law, a regime for its determination and management are set out in the NTA. Therefore, the common law definition must be considered in relation to the native title regime and all associated activities (including the types of organisations and entities that may be established as a result of native title) set up by the statute. In order to properly take into account the NTA for the purposes of making a decision on charitable status, the context and purpose of the legislation must be considered.
  2. Therefore where the membership and/or beneficiaries of an organisation or trust are described by reference to the system of law established by the NTA, the requirements of the NTA should be taken into account as a relevant factor when assessing eligibility for registration as a charity by a native title group organisation. While not all of the native title claim group may choose to become members of the applicant organisation, they would be entitled to do so and to be beneficiaries of income or benefits received and of services or activities.
  3. The NTA and Regulations sets out the requirements of a prescribed body corporate (PBC) which must hold the determined native title on behalf of the native title holders30. There are statutory requirements on the type of incorporation and its functions. Many PBCs seek registration as a charity and seek to carry out charitable purposes consistent with their NTA obligations, for example to apply money as directed by the native title holders for specific community purposes.

Society and kinship

  1. The NTA establishes a legal procedure to enable a native title claim group to seek a determination by the courts recognising the native title holders if they can establish continuing acknowledgement and observance of traditional laws and customs which give them common or group rights and interests in the land or waters. Native title rights are generally transmitted by descent from the original inhabitants of the land31.
  2. In the judgment of the High Court in the native title claim by the Yorta Yorta people in 2002, the relationship between the continuity of laws and customs, and the native title rights to land or water and the society is clear.
    To speak of rights and interests possessed under an identified body of laws and customs, is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs32.
  3. Dr Lisa Strelein has written on this issue saying the concept of ‘society’ is used because it serves to emphasise ‘this close relationship between the identification of the group and the identification of the laws and customs of that group’33. There would be no native title group to form an organisation unless there is a society acknowledging their traditional laws and customs. The description of the native title group comes directly from those traditional laws and customs.
  4. In Aboriginal culture, kinship and society are virtually the same thing. Social relations were constituted as relations between kin and sets of kin. Kinship classification systems operate designating categories of close kin. The complexity and diversity of these systems is in large part attributable to the regulation of marriage by kinship34.
  5. For example in Arrernte culture in central Australia, everyone is described as a relation of some kind, even if they are not directly related through blood or marriage. Meye is the Arrernte word for your actual mother, as well as for her sisters and some more distant relations. It can also refer to certain people who are not actually related to you at all through blood or marriage. Each relation word applies to a whole range of people with different connections. Anthropologists and linguists call these classificatory relationships and the relation words are ‘kin terms’35.
  6. It is noteworthy that while some apical ancestors will be related, they are not necessarily related to each other. The descendants of apical ancestors are likely to have classificatory relationships but many will not have an actual blood relationship, especially many generations later. It is clear that this can be distinguished from a descent line or blood ties in a British or Australian family as considered by various courts over time.
  7. In a decision considering whether a trust was charitable with a ‘purpose beneficial to the community’, Holland J wrote:
    ‘…whether a particular purpose is for the benefit of the community is necessarily a question of the time at which it has to be answered, because it is the knowledge, ideas, hopes, pleasures, needs, burdens and woes of a given society which determine where the welfare of its members lies and these things change over the years, sometimes with remarkable rapidity36.
  8. Hence whether an Indigenous native title organisation can meet the public benefit test should be considered on a different basis from the common law authorities that were considering a charitable trust for the descendants of an individual or individuals in a western family.
  9. Moreover in interpreting the common law, when there is relevant legislation passed by the Australian parliament subsequently, the common law authorities cannot be viewed in isolation. As discussed above, the system of law and legal requirements of the NTA need to be taken into account. By extension, this would mean that an application of the public benefit test to the facts of an Indigenous organisation or trust for a native title group should be by reference to the NTA.
  10. Where an organisation that defines its membership and /or beneficiaries by direct reference to the claim group description in the native title application or court determination applies to the ACNC for registration, the ACNC should interpret the common law on charity in relation to this applicant in light of the requirements of NTA.
  11. It is possible to distinguish the decisions in Re Compton and Oppenheim, from an organisation where the description of the membership and beneficiaries is based on a native title claim group description consistent with the NTA: namely the descendants of named apical ancestors who had an association with an area at the time of the arrival of non-Indigenous Australians in the area. The common law authorities in charity law relate to different circumstances, which may be relevant to some aspects of Australian society today, but cannot reasonably be applied to the circumstances of an Indigenous native title group seeking to apply native title rights or benefits for charitable purposes. The derivation, purpose and description of such a group means it can be a sufficient section of the public for the public benefit test and is appropriately distinguished from the common law authorities on public benefit.
  12. The same reasoning applies to an organisation for a traditional owner group which describes itself in similar terms based on similar legislative requirements to describe the group.

20. Dal Pont G, Law of Charity 2010 edition at para 3.1.
21. Re Compton; Powell v Compton [1945] 1 All ER 198; Oppenheim v Tobacco Services Trust Co Ltd [1951] AC 297 Lord Simonds.
22. Re Compton above, headnote, p 198.
23. Re Compton above, at p 200.
24. Propositus: ‘The person put forward, when there is a class ascertained by their relationship to a certain person; e.g. as regards children of A, A is the propositus’. P.G Osborn A Concise Law Dictionary, 5th ed 1964.
25. ‘Several: adjective 1. being more than two or three, but not many…6. Law binding two or more persons who may be sued separately on a common obligation. Pronoun 7. several persons or things; a few; some.’ The Macquarie Dictionary Online © Macquarie Dictionary Publishers Pty Ltd.
26. ‘No-one who has been versed for many years in this difficult and very artificial branch of the law can be unaware of its illogicalities….’ Simonds LJ at p 34.
27. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992).
28. National Native Title Tribunal website: www.nntt.gov.au/Pages/Home-Page.aspx.
29. Large groups of the community including residents of a particular geographic area have been accepted as being ‘a section of the public’: per Dixon CJ in Thompson v. FCT 102 CLR 315 at 321
30. s.56 & s.57 NTA and Native Title (Prescribed Bodies Corporate) Regulations 1999, Regulation 4.
31. Non-descent based rights (i.e. from the original inhabitants of the land) have been recognised for spouses/partners, neighbours or persons holding senior ritual authority but are not descendants of the named apical ancestors for the claim group. In Western Desert claims, descent from the original inhabitants is not always established i.e. the apical ancestor may have come from somewhere else, but been born on the area and therefore acquired transmissible rights in it. The courts have also recognised rights and interests by succession by a group to an area where the original inhabitants of that area have died out. However, these other types of native title rights that have been recognised are still premised on some form of descent (from one or more apical ancestors) in order for the group to demonstrate their shared traditional laws and customs.
32. Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58.
33. Lisa Strelein, Compromised Jurisprudence: Native Title Cases since Mabo, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2006, p 104 citing Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, pp 445-6, 50.
34. The Encyclopedia of Aboriginal Australia, general editor David Horton, published by AIATSIS, 1994, on Kinship at p 551-2.
35. Dobson, Veronica and Henderson, John, Anpernirrentye: Kin and Skin, published by IAD Press, 2013.
36. Attorney-General (NSW) v. Sawtell and Anor [1978] 2 NSWLT 200 at 205.

  1. After considerable public consultation over many years, in 2013 the Australian Parliament passed the Charities Act 2013 (Cth) (Charities Act). It contains a list of 12 charitable purposes and eligibility for registration by the ACNC from that date will require addressing at least one of these purposes.

Indigenous Disadvantage

There is a presumption of public benefit for these elements of this charitable purpose (s.7(c)-(d)).

Specific provisions for the application of the public benefit test for Indigenous native title or traditional owner organisations

37. House of Representatives Hansard, 29 May 2013, p.20.
38. Charities Bill 2013 Explanatory Memorandum, at para 1.90
39. EM para 1.92.