Points of law: The precedent of Australia

A legal decision down under could have implications for campaigning law in the UK

High Court of Australia
High Court of Australia

Charity lawyers in the UK have been keeping a close eye on a judgement in the High Court of Australia that some believe could make it easier for UK charities to do campaigning work.

An Australian judge ruled in December that the charity AidWatch, which campaigns for the effective delivery of the government's international aid, could include "the generation of public debate" about the distribution of aid as one of its objects.

The case has set a precedent in Australia. Charities there can now include fostering debate about their charitable purpose as an object, even if their charitable purpose is directly related to an area of government policy.

The Australian judge said two decisions taken in the House of Lords in the UK, which form the basis for the English law on charities and campaigning, and from which Australian law had been derived, were flawed.

A 1917 case, in which a member of the House of Lords said in the chamber that an organisation that existed to change the law could not be a charity, was flawed because previous case law did not support the assertion, the Australian judge ruled.

The judge also ruled that the 1948 case in which the National Anti-Vivisection Society lost its bid to become a charity was flawed because Lord Simmons, the judge in the case, had relied on the 1917 judgement.

"The reasoning that underpins the English law on charities and campaigning has been rubbished in the Australian high court," says Matthew Smith, a barrister at Maitland Chambers. "It used to be the case in Australia, as it is now in England, that a political object could never be a charitable object," he says. "In Australia they've said that there is no such rule."

The implications for charities in England could be significant, Smith says. "Charities here can already campaign to change the law, but it has to be ancillary to their charitable objects," he says. "In practice, this limits the scale of their campaigning work.

"An English charity, or a new organisation that wanted to become one, could ask the charity tribunal to review English law in this area. I'd be surprised if English judges came to a different conclusion to that of the Australian court."

Rosamund McCarthy, a partner in the law firm Bates Wells & Braithwaite, says: "It was courageous of the Australian court to expose the inherent weakness of the case law that covers political objects, and overturn it. There may well be a challenge in the English courts, based on this judgement.

"Although, in theory, English charities can campaign, in practice the Charity Commission's case officers are strict about it. When you're applying for charitable status they will smell a political purpose even if there isn't a whiff of one.

"I've known several groups have applications for charity status refused because they say they want to do campaigning work, even if this isn't one of their proposed objects. This might be enough to make some of these charities ask for a review of our law, using the Australian judgement."

But Nicola Evans, a senior associate at law firm Bircham Dyson Bell, believes the case won't affect the legal system in the UK. "The Australian court seems to have decided the English case law preventing a political purpose being charitable did not apply to Australian law, in part due to differences in the Australian constitution," she says.

"It would not be open to the Charity Commission or the tribunal to decide against the English authorities."

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