Purposes, Activities, and Modes of Action

Adam Parachin’s insightful chapter tackles a key fault line of charity law: the distinction between purposes and activities. He rightly highlights that charity law, at least if we think of charity law as the law of purpose trusts and the technical legal meaning of ‘charity’, focuses primarily on purposes and not activities. Yet, many of the current civil society controversies relate to questions about whether the means – the activities – adopted to achieve those purposes are themselves ‘charitable’ in a normative sense. Current antipodean examples concern the use of civil disobedience activities by environmental charities (not whether the preservation of the environment is a charitable purpose) and the issue of the discriminatory application of religious beliefs by religious charities – e.g., promulgation of a ‘traditional’ view of marriage (not whether the advancement of religion is charitable). The difficulty is that, typically, charity law’s response to whether an activity is charitable or not is to ask whether it furthers a charitable purpose by reference to what Parachin terms ‘cause and effect analysis’. This type of analysis has been adopted at the highest level in Australia by the High Court of Australia in Commissioner of Taxation v Word Investments Ltd, albeit I think it also ought to countenance activities that are the incidental effect of pursuing a purpose, not just the means to that purpose.
Therefore Parachin’s three prescriptions – for greater discipline in charity law analysis in distinguishing purposes and activities, to better understand that distinction, and to consider legislative intervention for particular troublesome
activities – are a valuable addition to law reform debates that too often centre
on legislative definitions of charitable purposes. However, there are two ways in
which this analysis underplays the current relevance of activities. I outline these
below as they provide a richer understanding to Parachin’s three prescriptions.
Finally, this chapter concludes with several further issues to consider in articulating
the purposes/activities distinction.