Harriet Warlow-Shill, Partner at Warlows Legal, joined to share her insights into the meaning of the charity sub-type ‘Public Benevolent Institution’, and how it is continuously being interpreted to fit the contemporary social landscape.
What is a Public Benevolent Institution?
A public benevolent institution (PBI) is one of the categories or ‘subtypes’ of a charity that can register with the Australian Charities and Not-for-profits Commission (ACNC). Public benevolent institutions can apply for charity tax concessions and may be eligible to be endorsed as deductible gift recipients (DGRs) by the Australian Tax Office.
A PBI is a charitable institution whose primary focus is to relieve poverty, sickness, suffering or disability.
Accordingly, a PBI must be:
- Public;
- Benevolent; and
- An institution.
Definitions:
- Public
The ACNC requires that the charity: be the recipient of public funds, have public control and accountability and/or connection with government.
An entity with three or more responsible persons that are unrelated to each other and that have a degree of responsibility in the community are more likely to demonstrate the criterion of “public control and accountability”. By contrast, an entity with one or two responsible persons is less likely to do so. The latter entity may still be “public” for PBI purposes if it demonstrates the other criteria – receipt of public funds, connection with government, and especially if it demonstrates the main criterion, that the entity benefits an extensive class of individuals.
- Benevolent
A PBI is benevolent if it is working for the relief of poverty or distress (such as sickness, disability, destitution, suffering, misfortune or helplessness).
The degree (level) of distress is also important and your charity only meets the definition if its purposes try to meet a need that is:
- significant enough (and the circumstances difficult enough) to arouse compassion in people in the community.
- beyond the suffering experienced as part of ordinary daily life, and
- concrete enough – aimed at helping people who are recognisably in need of benevolence.
Provided a charity’s one main purpose is benevolent, it can also have other non-benevolent purposes that are incidental.
Recent cases concerning the types of charities considered to be PBI’s have shown that the definition of a PBI is evolving.
Global Citizen Ltd v Commissioner of the Australian Charities and Not-for-Profits Commission [2021] AATA 331 concerned the interpretation of ‘benevolent’.
Heard in the Administrative Appeals Tribunal (AAT), this case involved GCL, a charity that engages in education, advocacy and securing commitments from the government and philanthropists to provide aid to international organizations that relieve poverty. Recently, they applied to change their charity sub-type from ‘advancing education’ to ‘PBI’. However, the ACNC rejected this application on the basis that: to be a PBI, a charity must only have one main benevolent purpose, and GCL had independent purposes of their benevolent purpose; it must also provide benevolent relief, and GCL’s activities were too remote from the actual delivery of this relief.
What did the AAT rule?
The AAT ruled that GCL could be considered a PBI, satisfied that GCL had only one purpose – the relief of global poverty. Its educational and advocacy activities were to achieve, and were incidental to, that main purpose.
To arrive at this decision, the AAT broadened the meaning of ‘benevolent.’ They stated that a PBI did not need to provide relief directly. They also affirmed that relief efforts require collaboration between “a variety of entities working with governmental and other NGOs to achieve positive results, using advocacy and awareness-raising as an integral part of that process to achieve their goals.” In other words, a PBI may be part of a process of provision of relief carried out by several entities. The Tribunal stated that though a PBI may have other purposes, its benevolent purpose must be predominant.
The Federal Court of Australia is to test the meaning of PBI after ‘Equality Australia’ was refused PBI status.
Currently, the term PBI is not defined in legislation, and there is an opportunity to clarify the term. This issue was raised in the ACNC’s submission to the Productivity Commission inquiry into Philanthropy.
Says ACNC Commissioner Sue Woodward, ‘this is a challenge for charities applying for this subtype and the associated benefits, and for us as the regulator in deciding if a charity meets the description of a PBI.’
We look forward to a future where the meaning of PBI is interpreted in a way that makes a positive impact across the whole charity industry.
Harriet Warlow-Shill is Founder + Principal of Warlows Legal, an innovative firm with a focus on client service, efficiency through technology and excellence. Warlows Legal engages in construction, charity, and commercial law, wills and estates, start-ups, and commercial litigation. Connect with Harriet via LinkedIn
