Modernising Charity Law

Modernising Charity Law

Recent Developments and Future Directions

Edited by Myles McGregor-Lowndes and Kerry O’Halloran

In recent years the pressure for charity law reform has swept across the common law jurisdictions with differing results. Modernising Charity Law examines how the UK jurisdictions have enacted significant statutory reforms after many years of debate, whilst the federations of Canada and Australia seem merely to have intentions of reform. New Zealand and Singapore have begun their own reform journeys. This highly insightful book brings together perspectives from academics, regulators and practitioners from across the common law jurisdictions. The expert contributors consider the array of reforms to charity law and assess their relative successes. Particular attention is given to the controversial issues of expanded heads of charity, public benefit, religion, competition with business, government participation and regulation. The book concludes by challenging the very notion of charity as a foundation for societies which, faced by an array of global threats and the rising tide of human rights, must now also embrace the expanding notions of social capital, social entrepreneurism and civil society

Chapter 7: Government–Charity Boundaries

Kerry O’Halloran

Subjects: law - academic, comparative law


Kerry O’Halloran INTRODUCTION The Preamble1 was the initial legislative statement of matters construed by government to constitute charitable purposes in a common law context. It provided an outline of what was to become the core agenda for government’s relationship with charity. The resulting implied partnership, as viewed by government, endured for four centuries and in many different cultural contexts across the common law world. During that period, judicial mediation on the balance to be struck between government interest in acquiring value for granting tax exempt privileges and the right of individuals to freely dispose of property in accordance with their particular altruistic wishes steadily broadened the range of purposes deemed to be charitable, the vagaries of donor choice often prevailing over government interest in acquiring value for tax exemption.2 The recent spate of charity law reform processes, completed or ongoing in many common law jurisdictions,3 can be seen as a return to the Preamble drawing board: as government initiatives, often in the context of formal partnerships with charity, to revise and reformulate the terms on which it proposed to continue granting tax exemption and other privileges to charity. The legislative outcome of these processes reveals the new agenda for a 21st-century relationship between government and charity. Again, this is represented primarily in the nature and extent of the now statutorily stated charitable purposes. Four centuries after the Preamble, however, that relationship has grown more complex and diffused. Consequently, while core business continues to be embodied in the charitable purposes...

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