Aid/Watch and Maurice Blackburn lawyers say the decision (Aid/Watch incorporate v Commissioner of Taxation 2010), has enormous implications not just for Aid/Watch but for any charity that seeks to influence government policy in the public interest.
The four-year legal battle started when Aid/Watch had its charitable status revoked in 2006 by the ATO after criticising Federal Government overseas aid policy.
Gary Lee, Aid/Watch director said: “This decision is a win for freedom of political communication in Australia. It resolves almost a decade of uncertainty for many charities and strengthens the ability of charities to advocate for the public good.
“We are pleased that the High Court has agreed with many of our arguments – that engaging in political debate is an essential part of advocacy work and very much in the public interest.
“The ATO’s 2006 decision sent shockwaves through the charitable sector and had a chilling effect on the willingness of the charitable sector to speak out. Today’s outcome finally resolves this issue.
Giri Sivaraman, senior associate at Maurice Blackburn said the case gave legal and financial certainty to charities and had broadened the definition of what charities could do ‘in the public interest’.
“Today’s outcome makes it clear that charities can speak out fearlessly, can generate public debate and can push the government for change on issues that are relevant to the work they do – whether that be the advancement of education, eradication of poverty or the rights of refugees.
“This decision overturns over 90 years of Australian law defining the role of charities. It brings the law up to date with how charities work in the 21st century.”
“The High Court has agreed that engaging in public debate confirms implied rights in the Constitution. This puts Australia ahead of other western nations in the way charities will be able to engage in public debate on matters of ‘public benefit’”
Gary Lee added that Aid/Watch was a small grassroots organisation and was only able to take this case on with the support of the charitable sector, members of the public and lawyers who were initially prepared to run the case pro-bono. The ATO has agreed that the case qualifies for test case funding.
Maurice Blackburn lawyers, along with David Williams SC, Sheila Kaur-Bains and Rashelle Seiden represented Aid/Watch at the AAT, Federal and High Courts.
October 2006: the Australian Tax Office disqualified Aid/Watch as a charitable organisation arguing it was engaged in political activity. Aid/Watch appealed this decision to the ATO arguing that it was a charity with the aim of alleviating poverty. The ATO decision was affirmed. Aid/Watch and other charities say the case would have a devastating ripple effect throughout the charitable sector.
July 2008: Maurice Blackburn agrees to assist Aid/Watch to take the case to the Administrative Appeals Tribunal. President, Justice Downes, overturns the ATO’s decision.
February 2009: ATO appeals to the Federal Court of Australia.
22 September 2009: The Federal Court handed down a judgement in favour of the ATO and Aid/Watch announces its intention to seek Leave to Appeal to the High Court.
12 March 2010: High Court grants Special Leave to Appeal.
June 2010: High Court trial runs for 2 days in Canberra.
December 2010: High Court overturns Federal Court decision confirming the right of Aid/Watch to engage in political debate.
Amanda Tattam at Maurice Blackburn T 0413 997 467
Gary Lee at Aid/Watch T 0416 373 621