Charity Law Association of Australia and New Zealand Conference 2018 The National Redress Scheme – whether the ACNC can register representative bodies of churches with the purpose of advancing religion Garth Blake AM SC 2 August 2018 Charity Law Association of Australia and New Zealand Conference 2018

National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) Participating institutions and participating groups (ss 107 and 132) Non-government institutions (such as churches) can become participating institutions A defunct institution (an institution that no longer exists) can become a participating institution, but must have a representative A lone institution that is not a legal person (called an unincorporated lone institution) must have a representative If two or more participating institutions form a participating group: the members of the group will be associates of each other; and the participating group must have a representative

National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) Representatives of participating institutions and participating groups (ss 107 and 132) The representative of a defunct institution acts on the institution’s behalf and assumes its obligations and liabilities under the scheme The representative of a an unincorporated lone institution may act on its behalf and will assume its liability to pay funding contributions but not any of its obligations under the scheme The representative of a participating group may act on behalf of each member of the group, but will not assume any obligations or liabilities of the members, except for the liability of a member to pay funding contributions

Representative of the Anglican participating group under the National Redress Scheme Redress for Survivors of Abuse Canon 2017 Authorises the registration of a company to co-ordinate and manage redress for survivors of child sexual abuse perpetrated by offenders through participation in a Commonwealth redress scheme (to implement the recommendations in the Redress and Civil Litigation Report of the Royal Commission into Institutional Responses to Child Sexual Abuse) on behalf of dioceses and organisations of the Anglican Church

Representative of the Anglican participating group under the National Redress Scheme Anglican Representative (National Redress Scheme) Limited “2.2 Principal Object The principal object of the Company is to co-ordinate the provision of redress under the National Redress Scheme by Participating Members for survivors of institutional child sexual abuse. 2.3 Other Objects (a) promote participation in the National Redress Scheme through membership of the Anglican Participating Group to Anglican Institutions throughout Australia; (b) enable an appropriate response to survivors of institutional child sexual abuse by the ACA and Anglican Institutions; (c) liaise with the Operator on behalf of the Participating Members; and (d) do all other things as may be incidental, ancillary or conducive to the attainment of the objects of the Company.”

Australian Charities and Not-for-profits Commission Act 2012 (Cth) Simplified outline (s 25) A not-for-profit entity is entitled to registration as a subtype of entity if certain conditions are satisfied including that it is an entity with a purpose that may comprise: advancing social or public welfare advancing religion or is a public benevolent institution A not-for-profit entity may be eligible to be registered as more than one subtype (on the basis that they have more than one charitable purpose)

Representatives of participating institutions registering as charities with the ACNC Guidance of the ACNC issued on 20 July 2018 (s 110-10) “The ACNC expects that many organisations that intend to be representatives will have objects that indicate a charitable purpose of advancing social or public welfare. Such organisations may also be eligible for ACNC registration under the subtype Public Benevolent Institution (PBI) if they meet all the requirements. A PBI is a charitable institution with a main purpose of providing benevolent relief to people in need. An organisation that is eligible for registration as a PBI, is also likely to be eligible for registration under the subtype ‘advancing social or public welfare’.”

The advancement of religion To advance religion means to promote spiritual teaching in a wide sense, to spread its message, or to take positive steps to sustain and increase religious belief, in ways that are pastoral or missionary: Keren Kayemeth Le Jisroel Ltd v Commissioners of Inland Revenue [1931] 2 KB 465 at 477; Presbyterian Church (New South Wales) Property Trust v Ryde Municipal Council [1978] 2 NSWLR 387 at 408 A church can create, maintain and improve educational, religious and philanthropic agencies only to the extent to which such agencies are conducive to the achievement of its fundamental purpose of the advancement of religion: Congregational Union of New South Wales v. Thistlethwayte (1952) 87 CLR 375 at 442

The advancement of religion In any individual case there are two questions: whether the particular non-religious purpose in question is capable of being for the advancement of religion; and how far in practice the achievement of that non-religious purpose will go (a question of fact and degree) Presbyterian Church v Ryde Council at 407 The purpose of advancement of religion may be executed by “gifts to religious bodies, orders, or societies, if they have in view the welfare of others”: Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1 at 32

Is the representative body of a church capable of being for the advancement of religion? The failures uncovered by the Royal Commission has had a significant negative impact on the public perception of churches “From child sexual abuse to church leaders involved in scandals, church abuse is the number one negative influence (73% say massive or significant) on Australian perceptions of Christians and Christianity. ” Faith and Belief in Australia, 2017, page 32 There provision of redress to survivors may be seen as a step in overcoming this negative influence and so capable of being for the advancement of religion

Is the purpose of a representative of a church capable of being for the advancement of religion? The provision of redress to survivors who were sexually abused as children when in the care of a church or its officials may be seen as an expression of care for their welfare and so capable of being for the advancement of religion A countervailing factor is that the provision of redress to survivors is only made where there is a release from all civil liability for the abuse of the responsible participating institution, their officials, their associates and the officials of their associates

How far does the achievement of a non-religious purpose by the representative of a church go? While this is a matter of fact and degree, the representative of a church under the National Redress Scheme may be able to properly conclude that application of its funds is in fact conducive, and that its particular activities do not go beyond what is conducive, to the achievement of the fundamental purpose of the church of the advancement of religion because it flows out of a voluntary decision underpinned by its religious doctrines of providing redress where it has been responsible for sexual abuse suffered by children entrusted to its care