The Australian Nonprofit Sector Legal Almanac 2015

Collected summaries of court cases involving nonprofit organisations, from Australia and overseas, during 2015, along with updates of legislative changes in all Australian jurisdictions. Significant Australian cases included several disputes with State Revenue Authorities about exemption from payroll taxes

Theorizing about board governance of nonprofit organizations : surveying the landscape

Leading scholars on nonprofit governance have urged that future research be more informed by theory in order to promote more rigorous analysis. The aim of this paper is to survey the major theories on board governance, including those based in the disciplines of economics, management, sociology, psychology, politics, history and theology, in order to respond to this challenge. In addition, the relevance of these theories to a critical set of board behaviors - that is, how boards monitor, judge and influence organizational performance - is examined. Gaps in the theoretical literature are identified, and implications for public policy are explored. We conclude that a multi-theory and multi-disciplinary perspective is needed if research on governance of nonprofit organizations is to be complete in scope, rich in content, and relevant

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, impacting on 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 paper we contribute to them by exploring public attitudes to these questions, presenting the findings of four focus groups. We find that while 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

Who Should Bear The Risk? The Party Least Able To Refuse Or The Party Best Able To Manage The Risk?

The outsourcing of human services by governments to the nonprofit sector has been accompanied by a transfer of legal liability risks. Human service providers are often required to indemnify the government for adverse consequences of service delivery and to acquire contract specified insurances. The civil liability crisis caused by a recent hard insurance market has exacerbated problems for nonprofit organisations in managing the government’s transfer of risk of human service outsourcing. This paper identifies and examines the risk shifting clauses contained in human service agreements across a range of Queensland government departments. It argues that it is in the interests of all parties of the risk to be allocated to the party best able to mange the risk rather than imposed by the party with the strongest negotiating power. It is argues that the prudent risk managemnt6 on the aport government may be to retain the risks so it can mange them itsel

From testamentary freedom to testamentary duty: Finding the balance

In recent years legal challenges to charitable bequests by testators' family members have become more common in Australia. Many charities faced with the prospect of a disputed bequest have been reluctant to pursue the matter in the courts. A review of leading reported cases involving charitable bequests in wills reveals that the courts are vigorous in upholding proper family provision as against charitable bequests, portraying this provision as based on moral obligation. Proper provision for family and other dependants is supported by both legislation and the courts on public policy grounds. This concept is confined to Australia, New Zealand, Canada, and to a lesser extent England, which are the only countries with comprehensive family provision legislation. The generational transfer of wealth by baby-boomers over the coming decades provides a scenario for increasing conflict between families and charities over bequests. How should this be balanced with the notion of testamentary freedom

The Training Grounds of Democracy? Social Trends and Nonprofit Governance.

This paper explores the relevant data regarding director recruitment and engagement. It argues that there are two trends which might result in organisations experiencing such difficulties. First, there is a trend of increasing expectations of nonprofit boards. Legal and social expectations of boards and individual directors have substantially increased, which may make potential directors wary of taking on the responsibility of board service. Second, it is possible that social trends are reducing the supply of potential directors. For the US, Putnam (2000) has argued that declining civic engagement is due to: pressures of time and money, and in particular the special pressures of two-career families; urban sprawl and increased time spent commuting; increased time spent watching television and related entertainment; and the gradual passing of the World War II-generation, a generation which proved to be exceptionally civically-minded. This paper will explore the available Australian data – limited though it is - relevant to Putnam’s argument. We argue that the combination of these trends may result in adverse implications for individual organisations and for civil society as a whole. The paper explores some possible approaches to resolving these difficulties

ACPNS Legal Case Notes Series: 2018-40 Royal Botanic Gardens And Domain Trust v The Attorney General Of New South Wales

Supreme Court of New South Wales, Kunc J, 31 October 2018.Court alteration by a scheme to permit more appropriate achievement of will maker’s intentions

ACPNS Legal Case Notes Series: 2017-36 Portis v Green

Supreme Court of New South Wales, Kunc J, 1 November 2017.Father and son relationship deteriorated however, the court found that it was not to has extend that would amount to estrangement as would warrant disentitlement from order of provision

ACPNS Legal Case Notes Series: 2003-1 Re Walker; Ex parte Fremantle Islamic Assn Inc

Supreme Court of Western Australia, Johnson J, 5 September 2003. Application for Writs of Prohibition – order nis

ACPNS Legal Case Notes Series: 2019-30 CANADA TRUST v PUBLIC GUARDIAN AND TRUSTEE 2019 ONSC 1768 (CANLII)

Ontario Superior Court of Justice, Ramsay J, 19 March 2019. A gift in a will to a charity facing disqualification being self represented by a vexatious litigant