Regulating Charity in a Federated State: The Australian Perspective

The last few decades have witnessed radical reform of charity regulation around the world. Australia has not been untouched and has developed several unique approaches. First, unlike many other federations (such as the US and Canada), Australia relies on a charities commission rather than its federal tax authority to act as the principal regulator, resulting in a very different scope of responsibility and the likelihood of greater interaction with state regulators. Second, unlike many other jurisdictions that have implemented a charities commission (such as England and Wales), the Australian commission is ultimately intended to apply to a broader pool of not-for-profits than just charities, which raises fundamental questions about the ways in which charities differ from the not-for-profit sector more broadly. This paper outlines the historical and political reasons for reform in Australia and the shape of that reform. As the reforms have now achieved broad political and sector support, the chief focus of this paper is on the out-workings of the reforms, with particular attention to the challenges and opportunities posed by Australia’s federal system of government and by the charity commission’s potential to regulate the broader not-for-profit sector.

What Regulation, Who Pays? Public Attitudes to Charity Regulation in England and Wales

Funding for England and Wales’ Charity Commission has been cut by 48% between 2007 and 2016, affecting its ability to deliver its core regulatory functions. Conversations around what charity regulation should look like and how it should be funded have, therefore, gained momentum. These debates, however, are not limited to England and Wales, and in this article, we contribute to them by exploring public attitudes to these questions, presenting the findings of four focus groups. We find that although public knowledge of charity regulation is low, people are, nonetheless, clear that charities should be regulated. There is no clear preferred method of funding a charity regulator and a significant amount of complexity and nuance in public attitudes. People trust charities, but this can be eroded if they do not have confidence in how they operate. A visibly effective regulator supporting and supported by charities is central to maintaining trust.

Charitable Incorporated Organisations: An Analysis of the Three UK Jurisdictions

The specific legal forms available for charitable organisations have received much less attention by scholars as compared to work on the definition of charity, the boundaries of charitable status and the duties of charity trustees. Under each of the three UK jurisdictions, it could be argued that all charitable property is held on trust (in the sense that it is held for interests of the charity’s beneficiaries) but many charities are no longer formed using the structure of a trust. Charitable organisations can have many possible structures including charitable trusts, charitable associations, charitable companies and now charitable incorporated organisations (CIOs). Until recently the UK lacked any specific legal form for charities. The CIO was created to remedy this: a corporate body with limited liability, formed purely by registration with the appropriate charity regulator. Since 2008 it has been enshrined in statute in all three UK jurisdictions, though implementation dates only from 2011 in Scotland and from 2013 in England and Wales. The focus of this paper is a comparison of the CIO form in the three UK charity law jurisdictions. It analyses the frameworks for CIOs established in England and Wales, Scottish CIOs (SCIOs) and the (yet to be implemented) CIOs in Northern Ireland. It concludes that whilst the CIO concept is effectively reflected in all three jurisdictions, the differences between these three types of CIOs are much more than just those needed to comply with the different regimes of charity regulation – the differences raise important choices for those seeking to establish new charities operating UK-wide.

Regulatory shifts: developing sector participation in regulation for charities in England and Wales

Cuts in the Charity Commission's budget have caused it to retrench in its regulatory activity and re-prioritise its core functions. As a consequence, the Commission has promoted greater trustee self-reliance and charity-sector provision of regulatory services. This paper analyses these regulatory developments alongside a broader analysis of self-regulation in the charity sector. This paper argues that while self-reliance and self-regulation offer opportunities to the charity sector to create nuanced, sector-sensitive regulation, they could also compromise the credibility and quality of charity regulation. This paper further argues that the charity sector needs to address as a matter of priority the drivers for regulatory reform, the purposes and priority of charity regulation, and the shift in the balance of power that results.