Charities are the New Constitutional Law Frontier

41 Pages Posted: 19 Jun 2017

See all articles by Nicholas Aroney

Nicholas Aroney

The University of Queensland - T.C. Beirne School of Law; Emory University - Center for the Study of Law and Religion

Matthew Turnour

Queensland University of Technology

Date Written: June 15, 2017

Abstract

The regulation of charities under the Australian Charities and Not-for-profits Act 2012 is one of the new frontiers in the exercise of Commonwealth legislative power. The powers conferred upon the Australian Charities and Not-for-profits Commissioner to compel the publication of information, to give directions and to remove and replace the leadership of charities in certain circumstances press the scope of Commonwealth law-making to new limits. However, there are questions to be asked about whether such provisions can be supported by the Commonwealth’s relevant legislative powers; and when a charity is formed for religious purposes, there are questions whether the powers conferred on the Commissioner interfere unconstitutionally with freedom of religion. In this article we review the constitutionality of the ACNC Act in the light of the relevant case law. We focus on the Commissioner’s powers in the context of the Act, but as charities are not constitutionally unique, we also ask whether the Commonwealth Parliament can similarly regulate businesses, trusts and individuals outside of a charitable context. In the Revised Explanatory Memorandum to the ACNC Bill, the Commonwealth maintained that a combination of the taxation, corporations, external affairs, territories and communication powers adequately supported the proposed law. We subject these claims to sustained analysis. We find that differing probabilities of constitutionality attend the complex and ambiguous matrix of regulatory powers conferred by the Act. We suggest that even if those powers can be constitutionally justified, albeit partially in certain contexts, policy considerations suggest the need for a sustained review of the ACNC Act and the powers conferred on the ACNC Commissioner. As the ACNC Act is scheduled for review in December 2017 we close by outlining the nature of possible reforms.

Keywords: charity law, constitutional law, Australian Charities and Not-for-profits Commission, federalism, religious freedom

Suggested Citation

Aroney, Nicholas and Turnour, Matthew, Charities are the New Constitutional Law Frontier (June 15, 2017). Melbourne University Law Review, Vol. 41, 2017, Available at SSRN: https://ssrn.com/abstract=2987585

Nicholas Aroney (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

Brisbane 4072, Queensland
Australia
+61-(0)7-3365 3053 (Phone)

HOME PAGE: http://law.uq.edu.au/profile/1098/nicholas-aroney

Emory University - Center for the Study of Law and Religion ( email )

Atlanta, GA 30322
United States

HOME PAGE: http://cslr.law.emory.edu/people/senior-fellows/aroney-nicholas.html

Matthew Turnour

Queensland University of Technology ( email )

2 George Street
Brisbane, Queensland 4000
Australia

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