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This subject will consider the legal framework applicable to not-for-profit entities in Australia. It is estimated that there are more than 600,000 not-for-profit entities within Australia and that collectively they make a significant contribution to the economy. The subject will critically examine:
- Context: the nature of the NFP sector and the diversity of entities that make up the sector;
- The variety of legal forms and the legal consequences of adopting different forms;
- The significance of NFP status and the interaction with notions of charity, including tax treatment;
- Definitional issues, including divergence between Commonwealth and States as a result of the Charities Act 2013 (Cth);
- Historical developments relating to the definition of charity and the various sub-groups eg public benevolent institutions, necessitous circumstances funds, health prevention charities;
- Key issues in relation to charities and similar NFPs eg identifying 'worthy' purposes; non- profit/non-distribution requirements; public benefit requirement and relationship between trust law and tax law;
- Constitutional dimensions, including the scope of the Commonwealth taxing power and the residual powers of the States and Territories and the impact on the development of charity law;
- Theoretical justifications for tax concessions;
- Policy issues including advocacy, government bodies and extra-territorial operations and philanthropy;
- Various tax concessions at Commonwealth and State and Territory level and tax avoidance and tax evasion involving NFP status;
- Private and Public Ancillary Funds and other issues associated with philanthropy; and
- Regulatory issues.
Intended learning outcomes
On completion of the subject, students will:
- Have an advanced understanding of the legal and economic significance of the NFP sector;
- Be able to apply in an integrated manner the statutory and non-statutory concepts relating to entities within the NFP sector;
- Be able to critically assess the tax and regulatory regimes applicable to NFP entities;
- Be able to understand and apply the complex tax provisions that apply at a Federal and sub- national level;
- Have an in-depth understanding of the policy relating to the sector;
- Have sophisticated insight into the arguments surrounding eligibility for various preferential treatment;
- Have an advance ability to undertake research into the interaction of the sector with the law; and
- Through the assessment, demonstrate a clear ability to construct and communicate in writing an expert argument based on understanding the nature of various NFP entities, identifying the legal issues that may arise and applying the law in relation to the entity in a coherent way.
On completion of the subject students should have developed and demonstrated expert skills in the following areas:
- Mastery of a complex and ever-changing legal regime.
- The ability to critically analyse the legal issues in relation to NFP entities and the sector and to initiate and apply relevant legal principles.
- The ability to carry out legal analysis relating to form requirements and various preferences.
- The ability to work collaboratively to produce professional advice.
- The ability to provide written advice that communicates and justifies a response to complex legal issues to both specialist and non-specialist audiences.
Last updated: 11 February 2021