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- Title
CHARITIES ARE THE NEW CONSTITUTIONAL LAW FRONTIER.
- Authors
ARONEY, NICHOLAS; TURNOUR, MATTHEW
- Abstract
The regulation of charities under the Australian Charities and Not-for-Profits Commission Act 2012 (Cth) ('ACNC Act') 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 as to 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 Australian Charities and Not-for-Profits Commission Bill 2012 (Cth), the Common wealth maintained that a combination of the taxation, corporations, external affairs, territories and communications 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 currently under review, we close by outlining the nature of possible reforms.
- Subjects
AUSTRALIA; CHARITY laws &; legislation; NONPROFIT organization laws; FREEDOM of religion; CONSTITUTIONAL law; AUSTRALIA. Charities &; Not-for-profits Commission
- Publication
Melbourne University Law Review, 2017, Vol 41, Issue 2, p446
- ISSN
0025-8938
- Publication type
Article