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Reform of Charity Law in Hong Kong and Australia: What Lessons Can Be Learned from the United Kingdom?
Published online by Cambridge University Press: 16 April 2015
Abstract
Since 2001, a number of common law jurisdictions have initiated reforms to their charity law and the United Kingdom has taken the lead. This article examines what Hong Kong and Australia can learn from the United Kingdom in reforming their own outdated and fragmented charity laws. It is contended that the lessons and experiences of the United Kingdom provide good insights for Hong Kong and Australia as each jurisdiction anticipates implementing a broadly similar regime to the United Kingdom's to modernize regulation of their charity sectors. This article contends that there is no need to make a choice between retaining judicial decision-making over charities (inconsistent as it is) and establishing a type of charity commission which makes determining charitable status akin to a decision of a government department. Instead, Hong Kong and Australia can have charity commissions with missions that are sensitive to their own legal terrains but which are subject to judicial review.
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- Research Article
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- Copyright © Faculty of Law, National University of Singapore 2011
References
1 (U.K.) 43 Eliz. I., c. 4.
2 [1891] AC 531.
3 O'Halloran, Kerry, Wyatt, Bob, Hunter, Laird, Gousmett, Michael & McGregor-Lowndes, Myles, “Charity Law Reforms: Overview of Progress Since 2001” in McGregor-Lowndes, Myles & O'Halloran, Kerry, eds., Modernizing Charity Law: Recent Developments and Future Directions (Cheltenham: Edward Elgar, 2010) c. 1 at 13Google Scholar.
4 (U.K.), 2006, c. 50.
5 U.K., National Council for Voluntary Organizations, Commission on the Future of the Voluntary Sector, Meeting the Challenge of Change: Voluntary Action into the 21st Century (London: NCVO, 1996)Google Scholar.
6 U.K., Centre for Civil Society, Next Steps in Voluntary Action (London: NCVO, 2001)Google Scholar.
7 Supra note 3 at 49.
8 U.K., National Council for Voluntary Organizations, Charity Law Reform Advisory Group, For the Public Benefit? – A Consultation Document on Charity Law Reform (London: NCVO, 2001)Google Scholar.
9 Supra note 3 at 49.
10 Ibid. at 50.
11 U.K., HM Treasury (2000), Getting Britain Giving in the 21st Century, announced in Budget, 21 March 2000Google Scholar. Also see overall comments by Michels, James Randolph, “UK Charity Law: Is it creating a True Democracy of Giving?” Vanderbilt Journal of Transnational Law, 2001, 34, 169Google Scholar.
12 Supra note 3 at 50.
13 U.K., Strategy Unit, Private Action, Public Benefit (London: Her Majesty's Stationery Office, 2002)Google Scholar.
14 Supra note 3 at 51.
15 U.K., Home Office, Charities and Not for Profits: A Modern Legal Fmmework (London: Her Majesty's Stationery Office, 2003)Google ScholarPubMed.
16 [1969] 1 AC 514.
17 Report of the Committee on the Law and Practice relating to Charitable Trusts, December 1952, Her Majesty Stationery Office, London, Cmd 8710) (Nathan Report)Google Scholar.
18 Supra note 3 at 48.
19 Supra note 3 at 48. See comments by Lindsay Driscoll. The Charities Bill has had one of the longest debates in the Parliament before it eventually secured passage.
20 U.K., Charity Commission, Charities and Public Benefit: The Charity Commission ‘s General Guidance on Public Benefit (London: Charity Commission, 2008)Google Scholar.
21 Supra note 3 at 14.
22 Charities and Trustee Investment (Scotland) Act, A.S.P. 2005Google Scholar.
23 Charities Act (Northern Ireland) 2008 (U.K.), 2008Google Scholar.
24 Charities Act 2006 (U.K.), 2006, c. 50, s. 3Google Scholar.
25 Charities and Trustee Investment (Scotland) Act, A.S.P. 2005Google Scholar, pt. 1, c. 2, s. 8 and Charities Act (Northern Ireland) 2008, (N.I.), 2008, c. 12, s. 3Google Scholar.
26 Charities Act 2006 (U.K.), 2006, c. 50, s. 6Google Scholar.
27 U.K., Charity Commission), RR1a – Recognizing New Charitable Purposes (London: Charity Commission, 2001) at [8]. Available at <http://www.charitycommission.gov.uk/publications/rr1.asp> (accessed 8 July 2011)+(accessed+8+July+2011)>Google Scholar.
28 Supra note 3 at 53.
29 Rickets, Andy, “Charity Commission Rejects Criticism Over Muslim Aid Allegation”, Third Sector Online (20 December 2010, online: Third Sector <http://thirdsector.co.uk/news/Article/1047280/Charity-Commission-rejects-criticism-Muslim-Aid-investigation/> (accessed 12 July 2011)Google Scholar.
30 Mustafa Kamal Mustafa (Abu Hamza) (No. 1) v. the United Kingdom [2011] ECHR 211Google Scholar.
31 Charities Act 2006 (U.K.), 2006, c. 50, Schedule 1Google Scholar.
32 U.K., House of Commons Expenditure Committee, Charity Commissioners and their Accountability, 10th Report (London: Her Majesty's Stationery Office, 1975)Google Scholar.
33 Supra note 3 at 54.
34 For details of cases and discussion on the working and reform of the Tribunal system, refer to the website online: <http://www.charity.tribunals.gov.uk>.
35 Supra note 3 at 17.
36 Ibid. at 70.
37 Ibid. at 43.
38 See section 88 of the Inland Revenue Ordinance (Cap. 112) for full details of the provision.
39 H.K., Office of the Ombudsman, Investigation Report: Monitoring of Charitable Fund Raising Activities (Hong Kong: HKSAR Govt. Press, 2003) at [5.3]Google Scholar.
40 See section 4(17)(i) of the Summary Offences Ordinance (Cap. 228) for full details of the provision.
41 Gambling Ordinance (Cap. 148).
42 See section 22(1)(a)(i) of the Gambling Ordinance (Cap. 148) for details.
43 The Law Reform Commission of Hong Kong, Charities Sub-Committee Consultation Paper, June 2011, online: <http://www.hkreform.gov.hk/en/publications/charities.htm> (“LRC consultation paper”)+(“LRC+consultation+paper”)>Google Scholar.
44 Ibid. at 3.
45 Ibid. see chapter 3 of the LRC consultation paper for greater details on this point.
46 Refer to the Inland Revenue Department website on guidance for charities, online: <http://www.ird.gov.hk/eng/tax/ach_tgc.htm> (accessed 18 July 2010).
47 Supra note 43 at 1.
48 Yau, Emily, “Charities Seek Better Regulator of Sector”, South China Morning Post, 24 March 2010Google Scholar.
49 Kwok, Shirley, “Bogus Charities Duping Public”, South China Morning Post, 8 April 1995Google Scholar.
50 Supra note 46.
51 Supra note 43 at 6.
52 See Recommendation 1 and 2 of the LRC consultation paper for details.
53 See Recommendation 13 of the LRC consultation paper for details.
54 Supra note 43 at [39] and [40].
55 Ibid. at [7].
56 Ibid. at [13].
57 Ibid. at [9].
58 Ibid. at [40].
59 Ibid. at [11].
60 See [59] and [60] of the LRC consultation paper for this discussion.
61 See [66] and [67] of the LRC consultation paper for details.
62 Central Bayside General Practice Association Limited v. Commissioner of State Revenue [2006] UCA 43 at [97] (per Kirby J).
63 Report of the Committee on the Law and Practice relating to Charitable Trusts, December 1952, Her Majesty Stationery Office, London, Cmd 8710) (Nathan Report); U.K., National Council of Social Service 1976, Charity Law and Voluntary Organisations, The Goodman Report.
64 Austl., Queensland, Queensland Law Reform Commission, Trust, Trustees, Settled Land and Charities, Report No 8 (Brisbane: Queensland Law Reform Commission, 1971)Google Scholar; Austl., Tasmania, Law Reform Commission of Tasmania, Unclaimed Charitable Funds, Report No 3 (Tasmania: Tasmanian Government Printer, 1975)Google Scholar; Austl., Victoria, Victorian Legal and Constitutional Committee, Report to the Parliament on the Law Relating to Charitable Trusts (Victoria: Victorian Government Printer, 1989)Google Scholar; and Austl., Tasmania, Law Reform Commission of Tasmania, Variations of Charitable Trusts, Report No 38 (Tasmania: Tasmanian Government Printer, 1984)Google Scholar.
65 Austl., Commonwealth, Charities Definition Inquiry, Report of the Inquiry into the Definition of Charities and Related Organisations (Canberra: Australian Government Publishing Service, 2001) (Sheppard Report), online: <http://www.cdi.gov.au/report/pdf/Charities_final.pdf> (accessed 12 July 2011).
66 Ibid. at 6.
67 Ibid.
68 Extension of Charitable Purpose Act 2004 (Cth.).
69 Incorporated Council of Law Reporting for England and Wales v. A-G [1972] Ch 73.
70 Royal National Agricultural and Industrial Assn v Chester (1974) 3 ALR 486; Incorporated Council of Law Reporting (Qld) v. FCT (1971) 125 CLR 659.
71 West Australian Baptist Hospital & Homes Trust Inc v. City of South Perth [1978] WAR 65; Brisbane City Council v. A-G (Qld) [1979] AC 411; and College of Law (Properties) Pty Ltd v. Willoughby Municipal Council (1978) 38 LGRA 81.
72 Thomas John, Extension of Charitable Purpose Bill, Bills Digest No 164, 2003-2004, online: <http://www.aph.gov.au/library/pubs/bd/2003-04/04bd164.pdf> (accessed 14 July 2011).
73 Economics Legislation Committee, “Tax Laws Amendment (Public Benefit Test) Bill 2010” 1, online: <http://www.aph.gov.au/senate/committee/economics_ctte/public_benefit_test_10/report/report.pdf> (accessed 14 July 2011).
74 Section 5 of British Income Tax Act 1799 (U.K.) 39 Geo. III., c. 13.
75 For example, Land Tax Assessment Act 1910 (Cth.), Estate Duty Assessment Act 1914 (Cth.) and Income Tax Assessment Act 1915 (Cth.).
76 Pont, Gino Dal, Charity Law in Australia and New Zealand (Melbourne: Oxford University Press, 2000) at 92–105Google Scholar.
77 Taxation Administration Act 1953 (Cth.) Sch. 1 Ch 5 Pt 5-35 Div 426; Taxation Ruling TR 2005/21.
78 Available online: <http://www.ato.gov.au/nonprofit/distributor.aspx?menuid=0&doc=/content/24483.htm&page=2#P8_484 (accessed 15 July 2011).
79 Gino Dal Pont, “Concepts in Taxation Law of Charities”, Halsbury's Laws of Australia (St Leonards: Lexis Nexis, 2009) at [75-1335].
80 Attorney-General v. Governors of Foundling Hospital (1793) 2 Ves 42.
81 Attorney-General v. Earl of Mansfield (1827) 2 Russ 501.
82 Re Finkelstein; National Trustees Co of Australasia Ltd v. Michael [1926] VLR 240.
83 Extension of Charitable Purpose Act 2004 (Cth.), s. 4 (“ECPA”).
84 ECPA, s. 5.
85 ECPA, s. 4A.
86 Gino Dal Pont, Halsbury's Laws of Australia, “Concepts in Taxation Law of Charities” (St Leonards, Lexis Nexis, 2009) [75-1335].
87 (1990) 27 FCR 279.
88 (2000) 101 FCR 91.
89 (2003) 130 FCR 477.
90 [2008] 236 CLR 204.
91 See Austl. Victoria Victorian Law Reform Committee, Charitable Trusts, (Victoria: Victorian Government Printer, 1966) at [32]Google ScholarPubMed.
92 [1891] AC 531.
93 Austl., Commonwealth, Senate Standing Committee on Economics, “Disclosure Regimes for Charities and Not-For-Profit Organisations” (Canberra: Commonwealth Government Printer, 2002) at [1.15], online: <http://www.aph.gov.au/senate/committee/economics_ctte/charities_08/report/c01.htm> (accessed 16 July 2011).
94 [1973] Ch 173.
95 SJ No 16, 18 June 2008 Economics Standing Committee Reference at 3, online: <http://parlinfo.aph.gov.au/parlInfo/search> (accessed 16 July 2011).
96 Economic Legislation Committee, “Tax Laws Amendment (Public Benefit Test) Bill 2010” at 1, online: <http://www.aph.gov.au/senate/committee/economics_ctte/public_benefit_test_10/report/report.pdf>> (accessed 16 July 2011).
97 Ibid.
98 Ibid.
99 Ibid. at 2.
100 Ibid. at 2.
101 Supra note 96 at 40.
102 Petrow, Stefan, “The History of Charity Law” in Pont, Gino Dal, Charity Law in Australia and New Zealand (Melbourne, Oxford University Press, 2000) at 44‒82Google Scholar.
103 [2010] HCA 42 at [47].
104 [2009] Ch 173.
105 [2009] Ch 173 at 181-182.
106 [1917] AC 406 at 442.
107 [2010] HCA 42 at [85].
108 Supra note 3 at 15.
109 The Australian Tax Office issued Draft Taxation Ruling TR 2005/D6 on charities on 11 May 2005.
110 Central Bayside Division of General Practice Ltd v. Commissioner of State Revenue [2006] HCA 43;
Commissioner of Taxation of the Commonwealth of Australia v. Word Investments Ltd [2008] 236 CLR 204.
111 Re Yachting Australia Incorporated and Chief Commissioner of State Revenue [2005] 61 ATR 104.
112 Victorian Women Lawyers' Association Inc v. Commissioner of Taxation [2008] 170 FCR 3.
113 [2008] 236 CLR 204.
114 Commissioner of Taxation of the Commonwealth of Australia v. Word Investments Ltd [2008] 236 CLR 204 at 225.
115 The Community Care Fund set up by the government to raise donations from large corporations and local tycoons in order to provide assistance to poor people outside the social safety net has not been well received and been dubbed as the ”Community Collusion Fund”, designed to provide economic favoritism to businesses who contribute.