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Equality Australia Ltd and Commissioner of the Australian Charities and Not-for-profits Commission [2023] AATA 2161

Brief summary of the facts

  1. This case arises out of an application by Equality Australia Ltd (the applicant) to the ACNC to be registered with the ‘Public Benevolent Institution’ (PBI) subtype of charity.
  2. The applicant focused on advocacy activities directed towards changing laws and social practices that cause distress to LGBTIQ+ people. The Applicant’s motivation for seeking these changes was to address the distress caused to many members of the LGBTIQ+ community.
  3. The ACNC refused to register the applicant with the PBI subtype because it considered that the applicant had an independent, non-benevolent purpose of engaging in advocacy to agitate for law reform and social change. The ACNC considered that this purpose did not amount to benevolent relief to people in need.
  4. The applicant argued that:
    1. its advocacy activities were directed toward relieving distress among the LGBTIQ+ community because these activities focused on ending discrimination against the LGBTIQ+ community, and
    2. it also engaged in activities that provided direct relief to members of the LGBTIQ+ community who are in distress.

Issues decided

  1. The Administrative Appeals Tribunal (AAT)'s decision was split, with a two-member majority of Deputy President McCabe and Member Bygrave (majority) upholding the ACNC’s decision that the applicant was not entitled to registration with the PBI subtype of charity.

Matters members agreed on

  1. All members agreed that the issues to be determined were:
    1. whether LGBTIQ+ people in Australia are susceptible to or experience distress to the extent that they are in need of the benevolence of a PBI, and
    2. whether the applicant is organised or conducted for or promotes the relief of distress experienced by LGBTIQ+ people in Australia.
  2. All members agreed that people who identify as LGBTIQ+ are in need of benevolence. They accepted expert evidence that people who identify as LGBTIQ+ are liable to suffer from ‘minority stress’ due to structural discrimination.
  3. All members agreed that, to determine whether the applicant is organised or conducted for or promotes the relief of the distress of LGBTIQ+ people, they must consider the nature and purpose of the applicant. The majority expanded on this, stating that the focus is on how the applicant was organised and what it actually does.

Majority decision

  1. Based on descriptions of the applicant’s activities and the skills and experience of its staff, the majority determined that the applicant focused on advocacy (particularly in relation to law reform and social change) and policy development. To the extent that the applicant provided direct support to individuals within the LGBTIQ+ community, the majority found that such support was incidental to its core focus on advocacy and policy development.
  2. In considering whether the applicant’s focus on advocacy and policy development meant that the applicant was organised, conducted or promoted to relieve the distress of people in the LGBTIQ+ community, the majority acknowledged that it is not necessary for a PBI to provide relief directly. The majority also said that a PBI may engage in activities that are preventative in nature. But, the majority stated that there ‘must be a sufficiency of connection between the applicant’s activities and the benevolent ends it pursues’.
  3. The majority concluded that the kind of advocacy for law reform and social change that the applicant was focused on was ‘too far removed’ from ‘the traditional concepts of benevolence, even allowing for the evolution that has occurred in our understanding of that term.’
  4. Therefore, the majority determined that the applicant was not a PBI.

Minority opinion

  1. Senior Member O’Connell in the minority considered that it was not necessary to determine whether seeking to change the law could amount to benevolent relief because the applicant engaged in a broader range of activities that were directed toward the relief of the LGBTIQ+ community. Senior Member O’Connell was satisfied that, considered on a holistic basis, the applicant was a PBI.

Our view of this decision

  1. As of 1 November 2023, the decision is subject to appeal. This Decision Impact Statement relates to the AAT decision and the law as it stands, noting that the appeal may provide further clarification of the law.
  2. The ACNC will continue to determine whether an applicant is a PBI by undertaking a holistic analysis, taking account of the aims (or objects or purposes) it is set up to achieve, and the way it achieves those aims through its activities.
  3. The ACNC accepts that a PBI can engage in some preventative activities, dependent on the particular circumstances.
  4. The overriding consideration will be, is there a sufficient connection between a PBI’s purpose and activities and the benevolent ends it pursues, as was the case in The Hunger Project Australia v Federal Commissioner of Taxation (2013) 94 ATR 855.

Impact on guidance

  1. The Commissioner’s Interpretation Statement: Public Benevolent Institutions (31 August 2023) draws on and refers to this decision.
  2. This decision has been appealed to the Full Federal Court. This Decision Impact Statement will apply until the Full Federal Court issues its judgment.

Approval date: 9 October 2023