Cases:
Equality Australia Ltd and Commissioner of the ACNC [2023] AATA 2161
Equality Australia Ltd v Commissioner of the ACNC [2024] FCAFC 115
Background: What Equality Australia Wanted
Equality Australia Ltd is a national LGBTIQ+ rights organisation. It was already registered as a charity under the subtype advancing public debate. Wanting access to broader tax concessions (and recognition of its work as benevolent), it applied to be registered as a Public Benevolent Institution (PBI).
Its argument was simple. LGBTIQ+ people face serious distress caused by discriminatory laws and social practices, something supported by expert evidence before the Tribunal, and Equality Australia’s work, sich as law reform advocacy, policy development, and some direct support, was all aimed at relieving that distress. Therefore, it claimed it was organised for benevolent relief. However, the ACNC disagreed. Relying on the Commissioner’s then-current PBI Guidance, it refused to grant PBI status. Equality Australia challenged the decision at the Administrative Appeals Tribunal. That dispute eventually made its way to the Full Federal Court.
The Tribunal Decision: A Split View
Majority: Advocacy Does Not Equal Benevolent Relief (in this case)
The Tribunal majority accepted that LGBTIQ+ people are a class experiencing recognised forms of distress, including minority stress, stigma, and harm caused by discriminatory structures, but the crucial question wasn’t whether LGBTIQ+ people are in need, it was whether Equality Australia’s activities were sufficiently connected to relieving that need. The majority conducted a detailed, holistic analysis of the nature of Equality Australia’s programs, the skills and backgrounds of its staff, the proportion of its time and resources devoted to particular activities, and the extent of direct support vs systemic advocacy. They found that advocacy, particularly for law reform, was the overwhelming focus, that any direct assistance was incidental to this, not central, and the core activities were directed at changing laws and social norms, not delivering immediate, practical relief to individuals experiencing distress.
Importantly, the majority acknowledged two points that often arise in PBI cases:
- A PBI does not have to deliver relief directly, it can work through intermediaries.
- Prevention counts: an organisation can aim to prevent future distress.
They also emphasised a third principle, that a PBI’s activities must have a ‘sufficient connection’ to actually relieving distress.
This is where Equality Australia fell short. In the majority’s view, large-scale advocacy for law and social change was too removed from the immediate delivery or facilitation of relief, aimed at broad systemic outcomes rather than targeted benevolent relief, and more aligned with public debate and human rights advocacy than traditional benevolence The majority concluded that even though advocacy can, in theory, lead to reduced distress in future, the connection here was too attenuated.
Minority: The Activities Were Enough
Senior Member O’Connell disagreed, as she saw a wider range of the organisation’s work as directly geared toward relieving distress, not merely advocating for structural change. Looked at in totality, she believed Equality Australia did meet the ordinary meaning of a PBI, however, as a minority judgment, her view did not affect the Tribunal’s outcome.
Full Federal Court: No Legal Error, Appeal Dismissed
When the matter reached the Full Federal Court, the question was not whether Equality Australia should be a PBI, but did the Tribunal make a legal error in deciding it was not? The Court emphasised this repeatedly, whether something is a PBI is largely a question of fact, and appellate courts cannot redo factual findings unless there is an error of law.
The Two Issues Before the Court
The Full Court examined two main arguments from Equality Australia:
1. Did the Tribunal invent a new legal test by requiring sufficient connection?
Equality Australia argued that this requirement effectively smuggled in a directness test that had been rejected in earlier Federal Court decisions (The Hunger Project cases). The Full Court firmly rejected this, as Hunger Project dealt with delivery of relief, whether it had to be delivered personally or could be delivered through another body; it did not remove the requirement that activities must be apt to achieve benevolent purposes. The Court held that High Court cases have always implied that activities must bear a real and appropriate relationship to relieving distress, and the Tribunal’s “sufficiency of connection” was simply a way of evaluating that relationship, not a new or unlawful test.
2. Was the Tribunal’s conclusion unreasonable?
Equality Australia argued that once the Tribunal accepted that LGBTIQ+ people experience distress, and that law reform may relieve that distress, then it had to conclude that the connection was sufficient, however the Full Court disagreed, highlighting that the Tribunal majority had found that the group was in need, Equality Australia’s purpose was to address that need, it pursued that purpose through advocacy and law reform efforts, but those efforts only might relieve distress. Therefore, even if there is a logical connection between advocacy and relief, the Tribunal was entitled to find that this connection was not strong enough to meet the PBI threshold. This was a legitimate factual conclusion, not a legal error.
Why the Case Matters
1. Sufficient connection is now clearly endorsed
This case confirms that decision-makers assessing PBI status may examine how closely the actual activities line up with the benevolent purpose, ask whether the activities are genuinely apt to relieve distress, and determine, as a matter of fact, that advocacy is too remote from benevolent relief in a particular case
2. Advocacy-focused charities face a high PBI threshold
This does not mean advocacy organisations cannot ever be PBIs, but it does mean they cannot rely on a broad or theoretical chain of causation, and they must show a clear, demonstrable, operational connection between what they do and the relief they claim to deliver.
3. The decision reinforces a holistic assessment
There are no rigid rules, no single determinative activity, and no automatic disqualification for advocacy, but the organisation must show more than a conceptual link between its work and the relief of distress.
This will affect advocacy groups seeking PBI registration, especially those whose work is predominantly systemic, political, or law reform-oriented.
With expertise in registering charities and PBIs, please get in touch with Warlows Legal today using the contact information down below.
