ACNC has issued an exposure draft to identify institutions which
would be eligible for registration as health promotion charities.
It has drawn on the ATOs tax ruling 2004/08 and interpreted the
definition of "institution whose principal activity is to
promote the prevention or control of diseases in human
The underlying rule in determining whether an institution is
charitable is to study its objects. Activity is usually a secondary
consideration. This therefore may create tension between the
objects of an institution and whether its activities pursue those
"Disease" has a broad interpretation to encompass both
physical and mental illnesses. There may be some situations where
ACNC will need to call on experts for determination as to whether a
particular illness is a mental illness. Physical symptoms are not
"disease" but may lead to "disease" eg ACNC
cites, obesity which can lead to heart disease or diabetes. ACNC
will be open to advice from health authorities on identification of
new or emerging diseases.
ACNC needs to identify whether the activities being undertaken
are aimed at "promoting the prevention or control" of a
particular disease. The exposure draft distinguishes the concept of
"promotion" from the broader activity of
"prevention" or "control", eg promotion of
public awareness would qualify, but actual research, may not. This
distinction may be difficult to discern, so, we will watch to see
if any submissions received (due before 15 February, 2015) suggest
any change is made.
There will also be some interest in whether an entity whose sole
purpose is fundraising, for another charity that, for example, is
providing treatment, would itself be an eligible health promotion
charity. Commissioner of Taxation v Word Investments  HCA
55 and Commissioner of Taxation v The Hunger Project Australia
 FCAFC 69 both recognised fund raising entities as
eligible charities themselves.
ACNC will also analyse the constitution of an institution
seeking registration, and will study the website of that
institution. Websites are often advertisements for charities and
may not accurately reflect the objects within the constitution nor
the activities which the charity carries out. Charities should be
alerted to monitor the content of their websites so as to not
misrepresent their role.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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