The Reform of Charitable Constitutional Purposes: Should Australia Follow England's Path in Aligning Charitable Trusts and Corporations?

Abstract

Both England and Australia have traditionally maintained a key distinction for reform of the purposes of charitable organisations. In both jurisdictions, the charitable trust has been subject to the rigours of the cy-près doctrine which limits the circumstances in which reform can occur and subjects it to control by the court, or in England, the Charity Commission. By contrast, it has been more straightforwardly possible to reform ordinary incorporated charities following a vote of the members. Recent reforms in England will alter this traditional legal position, so that the purposes of both charitable trusts and ordinary incorporated charities will be modifiable following a vote (for trusts, of the trustees, for incorporated charities of the members). There is a potential parting of the ways between the two jurisdictions. This provides an opportunity to reflect on whether the trusts/corporations distinction should be maintained. The article draws out the emergent distinction between the two jurisdictions, before moving on to critically assess whether Australia should follow England’s path. While the focus is on Australia and England, the question pertains to many common law jurisdictions.

Keywords: charity law, cy-pres, charitable trusts, charitable purposes