In February 2007, the Ethnic Communities' Council of Victoria (ECCV) approached PILCH for pro bono assistance to bring a representative action on behalf of international students in the Victorian Equal Opportunity & Human Rights Commission. This action was to explore whether the denial of concession rates to international students by the Department of Infrastructure constituted racial discrimination in the provision of goods and services under the Equal Opportunity Act 1995. During the course of this action, the Transport Legislation Amendment Bill 2007 was entered into the Parliament of Victoria. If passed, this Bill could effectively eliminate any future applications to the Commission or to the Victorian Civil and Administrative Tribunal (VCAT) and quash the legal debate regarding discrimination against overseas students with respect to transport concessions.

Victoria and New South Wales are the only two states that continue to refuse to provide transport concessions to overseas students. The current government policy funnels international students into the disadvantageous position of paying full transport fares for the sole reason that they are non-citizens, at a cost of around $50 per month. Central to this matter is the issue of racial discrimination.  On the basis of these broader public interest issues PILCH referred the matter to one of its member firms for pro bono assistance.

The matter failed at conciliation before the Commission. Under current conditions, there remained scope for the ECCV to make an application to VCAT. The passing of the new Bill, currently before the Legislative Council in the Parliament of Victoria, would sever this avenue.

The Bill proposes to amend the Transport Act 1983 to allow the Director of Public Transport to determine and publish a condition that overseas students, or a specified class of overseas students, are not eligible for student concessions for public transport use. The Bill specifically provides that the making of such a condition does not constitute, and never has constituted, discrimination on the basis of race for the purposes of the Equal Opportunity Act.

Interestingly, the Bill expressly allows for the continuance of the ECCV's complaint before the Commission. However, if the Bill is passed in its current state, it would not allow for the matter to proceed to be heard in VCAT. Effectively, the Bill would prevent all further complaints and any new parties being added to the ECCV complaint.

The Bill proposes to determine the current policy is non-discriminatory, and will effectively bypass the process by which complaints are to be brought and determined pursuant to the Equal Opportunity Act. The fact that the established mechanisms for determining whether a policy is discriminatory can be circumvented by the introduction of legislation sets a troubling precedent for any individual or group considering making a complaint of discrimination.

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LIV Community Lawyer Award goes to PILCH Executive Director

Kristen Hilton, Executive Director of PILCH, received the Community Lawyer Award at the Law Institute of Victoria's President's Awards last week.

The annual President's Awards acknowledge the achievements of legal practitioners throughout Victoria, recognising their professional excellence in legal practice, the promotion and advancement of the legal profession, service to the community and the protection of human rights.

Kristen Hilton and other President's Awards winners

9 November 2024

PILCH would like to offer a special congratulations to Cecilia Riebl of Blake Dawson who received the Access to Justice Award at today's ceremony. Cecilia is a volunteer lawyer with the Homeless Persons' Legal Clinic and is also actively involved in pro bono work with PILCH and the Human Rights Law Resource Centre.

PILCH wins Community Responsibility Award

at Business 3000 Awards

Last month PILCH was awarded the Business 3000 Community Responsibility Award for its exceptional contribution to facilitating access to justice for thousands of Victorians.

Tabitha Lovett, PILCH Manager, and other winners of the 2007 Business 3000 Awards

Business 3000 aims to promote success, innovation and excellence in Melbourne and recognises the achievements of both businesses and not-for-profit organisations through its annual awards program. Twelve companies and not-for-profits are nominated each year in one of four awards categories - Export, Innovation, Community Responsibility and New Business.

Tabitha Lovett, Manager of the Public Interest Scheme, accepted the Community Responsibility Award on behalf of PILCH at the Awards Dinner held at the RACV Club. In accepting the award Ms Lovett commended PILCH's staff as: "passionate about their work, intelligent, resourceful and dedicated to helping people access justice." Ms Lovett also praised PILCH members, PILCH's dedicated Board and the hundreds of lawyers, students and others who volunteer through PILCH.

"This award is really a tribute to our volunteers and members and their work to protect the rights and dignity of disadvantaged people in our community. Their generosity and commitment to assisting eligible clients on a pro bono basis is a wonderful demonstration of respect for the community in which they work and live", Ms Lovett said.

PILCH would like to thank the Business 3000 Committee for their recognition and support, and congratulates the other nominees in the Community Responsibility category.

Further information about Business 3000 can be accessed at www.b3000.org.au

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VLF Funding for

Not-For-Profit Web Portal

PILCH has recently been awarded a grant from the Victorian Law Foundation towards the proposed Not-For-Profit legal service, in particular, for the development of a comprehensive web portal tailored to meet the needs of NFP organisations through the provision of online legal and legally-related resources such as checklists, plain language guides, FAQs, precedents and case studies about issues commonly faced during the 'life cycle' of a NFP organisation.

Thank you to VLF for their continuing support in establishing the specialist NFP legal service.

Read more about the proposed portal and new service on our website.

PILCH in the Media

Australian Electoral Commission failure to assist homeless to vote
Caroline Adler, HPLC Manager, and Tony Keenan, CEO of Hanover Welfare Services, discuss measures for encouraging homeless people to vote in the upcoming election.
'Homeless organisations hit out at AEC', The Age, October 31 2007.
View the Age article online here.

PILCH referral in Animal Liberation Matter
Animal activist group Animal Liberation (SA) Inc were represented pro bono by Jim Delaney QC, Matthew Barret of counsel and Henrik Lassen of Herbert Geer & Rundle. Animal Liberation were being sued for hindering trade under the secondary boycott provisions of the Trade Practices Act.
Lawyers Weekly, 19 October 2024 -
Read the Lawyers Weekly article online here.

The Case For Pro Bono
Tabitha Lovett, PILCH Manager, and Hugh de Kretser, Executive Officer of the Federation of Community Legal Centres, offer their views on pro bono lawyering and the value of volunteering in this month's Law Institute Journal.
'The Case for Pro Bono' - Law Institute Journal, p9, November 2007

Public Interest Law Scheme

PILCH receives many requests for assistance under its Public Interest Law Scheme.  Those applications that satisfy means, legal merit and public interest criteria are able to be referred to PILCH members for pro bono assistance.

The following summaries, while far from constituting a complete list of either referrals or PILCH members who have undertaken referral work, are reported to give an indication of the range of individuals and organisations applying for assistance, the types of assistance they seek, and the variety of pro bono work undertaken by PILCH members.

PILCH is very grateful to all its members who have accepted pro bono referrals to assist individuals and not-for-profit organisations.

Case Summaries

Alpha Autism

Blake Dawson Waldron and Jason Kane of Counsel have agreed to assist Alpha Autism Inc in a planning matter at VCAT . Alpha Austism (Alpha) is a government funded specialist support service for adults with Autism Spectrum Disorder. Alpha now supports over 300 adults with autism across the metropolitan area with six day centres, respite services, an open employment service, training and development and a client-run social and recreational group. Outreach to rural areas is also provided where possible. Alpha is an incorporated association as well as a registered charity and is run by a voluntary committee of management.

During 2004/2005 Alpha received a number of requests for its services from families living in the Brimbank area. After further investigation it was apparent that there were very limited options for adults with autism in that area and that additional services were required to support these clients and their families.

Alpha applied to the City of Brimbank for approval to establish a day program for adults with Autism in a vacant church. The planning approval was granted by the City of Brimbank. However, there were a number of objectors to the proposal.

The matter is currently before VCAT in the planning list.

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Mary's Meals

Francis Abourizk Lightowlers has agreed to assist Sonia Starc with the registration of an Australian branch of a Scottish-based, international charity called Mary's Meals. Mary's Meals started in Malawi in 2002 and provides daily meals to school children in communities in which children suffer from chronic hunger and where poverty acts as a barrier to children obtaining an education. Currently, the organisation provides meals daily to more than 200,000 children in parts of Africa, Asia and Latin America. Branches of Mary's Meals have been established in Ireland, Germany, Poland and France. With the dedication of Ms Starc and Francis Abourizk Lightowlers, the organisation will benefit from an Australian branch.

Arts Project Australia (APA)

Mallesons Stephen Jaques has kindly agreed to provide some corporate structuring advice to Arts Project Australia (APA). APA was founded in 1974, and is a unique gallery and studio based in Northcote, Melbourne dedicated to supporting and promoting the individual artistic expression of people with an intellectual disability. APA is widely known in the community for its exhibitions and achievements. The ground floor stages a full annual program of changing exhibitions featuring work by artists from the studio as well as from the wider community. APA is also involved in many exhibitions locally, nationally and internationally, and artists from APA are represented in many private and public collections.

Law Institute of Victoria

Legal Assistance Scheme

The Law Institute of Victoria Legal Assistance Scheme ('LIVLAS') receives many requests for assistance.  Where the application satisfies a means and legal merits test, and the client is ineligible for legal aid, or it is inappropriate to refer the matter to a community legal centre, legal assistance can be provided through a pro bono referral to a solicitor on the LIVLAS register.

Staffing News

We are pleased to announce that Michelle Panayi has accepted the position of Co-Manager of the LIV Legal Assistance Scheme.  Michelle previously managed the Victorian Bar Legal Assistance Scheme at PILCH and more recently assisted with the Homeless Persons' Legal Clinic.  Michelle comes to PILCH with extensive experience at Victoria Legal Aid which has been invaluable in her roles at PILCH. 

The appointment was possible due to a generous increase in funding from the Law Institute of Victoria.  We would like to thank the Law Institute and the Legal Services Board for its support and look forward to the continued development of the Scheme, which for many vulnerable and disadvantaged members of the community is their only means of accessing the justice system.

Case Summaries

LIVLAS continues to help numerous clients seeking pro bono assistance.  Our work is made possible by the continuing commitment and generosity of the legal firms who have accepted pro bono referrals.

The following summary highlights the type of referral work undertaken by LIVLAS:

Superannuation

Ms X was married to and had a son with Mr B.  Ms X and Mr B subsequently divorced.  After the divorce, Mr B nominated his son as the sole beneficiary of his superannuation fund.  Ms X's former mother-in-law is now claiming one half of the funds in Mr B's superannuation fund.  Thank you to Caitlin Bowden of Dwyer & Co for agreeing to assist Ms X in asserting her son's interest in the superannuation funds on a pro bono basis.

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Financial abuse

LIVLAS has continued to receive many requests for assistance from vulnerable clients who have been coerced by family members into signing loan or guarantee documents.

Ms P is a single mother with limited English skills.  She signed a guarantee secured by the family home in respect of a loan for a business conducted by her former husband at his request.  Ms P was unable to read the documents and was not advised that she should obtain independent legal advice.  She asked her ex-husband if she could lose the family home and he advised her that no-one could take the house.  Thank you to Russell Mitchell of law firm Eggleston Mitchell for assisting Ms P in respect of the guarantee on a pro bono basis.

Victorian Bar Legal Assistance Scheme

The Victorian Bar Legal Assistance Scheme ('VBLAS') is now in its sixth year of administration by PILCH and has continued to develop and improve access to pro bono legal services from barristers.  Matters referred to barristers continue to cover diverse areas of law, including family, crime, migration, contract, trusts, tort, personal injury, TAC, employment, debt recovery, tenancy and discrimination. 

Case Summaries

Guardianship

Barrister Kathryn Rees worked together with Craig Brook of Clayton Utz to assist Homeless Persons' Legal Clinic client Mr B with a guardianship matter in VCAT. Associates of Mr B had applied for an administrative order in VCAT for him, but he did not want the order to be imposed. Ms Rees successfully negotiated with the applicants and the VCAT member to have the hearing adjourned for six months, then to have the application dismissed altogether. Without the assistance of counsel and his solicitor, Mr B would most likely be on the administrative order today.

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Criminal

Andy Naidu of counsel assisted Ms K with a criminal charge in the Melbourne Magistrate's Court. Ms K had taken an unattended purse, but then felt bad about this and wanted to return the purse to its owner. Before she was able to do this she was arrested. Ms K had never before been convicted and was adamant that she plead not guilty so as to not compromise her employment prospects. Mr Naidu advised the client that it would be advisable to plead guilty but ask that no conviction be recorded. Mr Naidu then successfully negotiated with the prosecutor and the magistrate to have no conviction recorded. Ms K was very happy with the outcome.

Homeless Persons' Legal Clinic

Street Rights - HPLC monthly newsletter

Please visit our website for the latest issue of Street Rights, which includes:

·          Information about Guardianship Orders

·          Human Rights and Unlawful Evictions

·          Launch of the Equal Service Discrimination Guidelines for businesses

·          Good news stories

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Tax Concessions for Not-For-Profit Organisations

As highlighted in our September edition of PILCH Matters, PILCH is establishing a specialist legal service to focus on providing free/low cost legal information, advice and training for not-for-profit community organisations.

In the last financial year PILCH referred over 140 not-for-profit organisations to our members for pro bono legal advice. A significant proportion of the requests were for advice regarding an organisation's eligibility for tax exemptions and for assistance to make applications to the Australian Taxation Office (ATO).

Dianne Sisak, a Senior Associate with Minter Ellison has advised a number of not-for-profits on their tax status and in the article below considers the tax concessions available for not-for-profit organisations and the ATO's criteria for endorsement.

Many not-for-profit organisations have to compete for government and private funding of their activities while also being limited in the extent to which they are able to carry out commercial activities, or otherwise risk losing their not-for-profit status.  

General categories

The federal government encourages the activities of not-for-profit organisations through two important concessions available under the Income Tax Assessment Act 1997 (Cth) (ITAA 1997):

·          exemption from having to pay any income tax; and

·          deductible gift recipient (DGR) status.

There is some overlap between the requirements for endorsement as an income tax exempt entity and a DGR, but generally the regimes that apply to each type of tax concession operate independently of each other. 

Not-for-profit organisations do not have an automatic right to either or both of tax exemption or DGR status simply because they operate on a not-for-profit basis.  Generally a not-for-profit entity must apply to the Commissioner of Taxation to be endorsed for either or both of these tax concessions and can only do so if they meet specific conditions for endorsement. 

Deductible gifts

There are broadly two types of DGR entities: DGRs that are specifically listed by name in the ITAA 1997 and DGRs that meet the criteria of one of a number of general categories. 

Specifically listed DGRs do not require endorsement by the Commissioner of Taxation.  Becoming specifically listed is a political process that involves lobbying the federal government to amend the ITAA 1997.  There are no hard and fast rules to this process, however, the not-for-profit entity must be able to establish that it is performing a unique function not currently being undertaken by any other entity and it must meet certain public control tests. 

All general DGRs must apply to the Commissioner of Taxation for endorsement.  The process of endorsement involves an examination of the organisation's constituent documents, objects and activities.  General DGR categories cover the areas of health, education, research, welfare and rights, and environment among others.  There are a number of different types of entity that fall under each subject category and many within each of these categories are required to satisfy specific additional criteria. 

Ancillary funds are a particular type of DGR entity. Ancillary funds can either be established as public funds (which must seek donations from the wider public) or prescribed private funds (where donations are privately sourced).  All ancillary funds act like conduits whereby they are required to pass on any donations they raise and any income derived from those donations to other DGR entities that are not themselves an ancillary fund.  

For many not-for-profit organisations DGR endorsement is an important imprimatur to obtaining funding for their activities, as government departments and other philanthropic organisations will often only distribute funds to organisations that have DGR status.  The advantages of DGR endorsement are that certain gifts, such as gifts of money and property, and other qualifying deductible contributions made in relation to participating in a fundraising event, such as the cost of purchasing tickets to attend a charity ball, can be deductible to the donor against their assessable income.

Income tax exemption

Tax exempt organisations are similarly categorised to DGRs as including those that are specifically listed and those that meet the criteria of one of a number of specified general categories.  Some, but not all types of general tax exempt entities are required to seek endorsement from the Commissioner of Taxation.  The advantages of tax exemption are that the tax exempt organisation is not required to pay any income tax and it does not have to lodge income tax returns, unless specifically requested to do so by the Commissioner of Taxation. 

On-going obligations

DGR and income tax exemption status, once granted, is not absolute. Organisations are required to monitor and review their objects and activities on a yearly basis in order to ensure that they continue to meet the requirements for endorsement.  If they do not continue to meet the requirements, they are obliged to inform the Commissioner of Taxation of that fact. 

Conclusion

Not-for-profit organisations seeking DGR and/or tax exemption status should consider what benefits the tax concessions would provide them with. For example, tax exemption would provide little advantage to organisations whose outgoings equal or exceed their income but would be a significant benefit to organisations with a large income and significant donations.  Not-for-profit entities whose activities are largely funded by corporate sponsorships would have little benefit in obtaining DGR status, whereas organisations who are largely dependant on private donations would find DGR status to be a significant benefit.

Entitlement to the above tax concessions is not always straightforward and not-for-profit organisations would be well-advised to seek specific legal advice before heading down that path as often the constituent documents of the organisation may require amendment before the organisation will qualify for the tax concessions.

For further information regarding pro bono assistance available to not-for-profit organisations please contact Tabitha Lovett at PILCH on 9225 6680 or by email tabitha.lovett@pilch.org.au.

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If you are interested in public interest lawyering and pro bono work, and support the work done by PILCH - for only $20 plus GST per year - you can become an official PILCH Supporter. 

Being a PILCH Supporter will ensure that you to receive PILCH publications and an invitation to upcoming events.

Please visit our website for more information and an application form.

PILCH Members

Law Firms

Aitken Walker & Strachan

Allens Arthur Robinson

Andrew George Solicitors

Arnold Bloch Leibler

Arnold Dallas McPherson

Baker & McKenzie

Blake Dawson Waldron

Clayton Utz

Corrs Chambers Westgarth

Deacons

Ebsworth & Ebsworth

Francis Abourizk Lightowlers

Freehills

Hall & Wilcox

Herbert Geer & Rundle

Holding Redlich

Hunt & Hunt

Lander & Rogers

Maddocks

Mallesons Stephen Jaques

Middletons

Minter Ellison

Phillips Fox

Robinson Gill

Russell Kennedy

Sparke Helmore

The Office of David Grace QC

TressCox

Wisewoulds

Corporate Legal Departments

AXA Asia Pacific Holdings Ltd

Goldman Sachs J B Were

Linfox

National Australia Bank Ltd, Legal Department

TABCORP Holdings Ltd, Legal Department

Transport Accident Commission

Visy Industrial Packaging Holdings

Community Legal Centres

Aboriginal Family Violence Prevention and Legal Service

Casey Cardinia Community Legal Service

Central Highlands Community Legal Centre

Coburg Brunswick Community Legal and Financial Counselling Centre

Community West

Consumer Law Centre Victoria

Darebin Community Legal Centre

Environment Defenders' Office (Vic) Ltd

Essendon Community Legal Centre

Federation of Community Legal Centres (Vic)

Fitzroy Legal Service

Flemington-Kensington Legal Centre

Geelong Community Legal Service

Gippsland Community Legal Service

JobWatch Inc

Loddon Campapse Community Legal Centre

Melbourne University Student Union Legal Service

Mental Health Legal Centre

Monash Oakleigh Community Legal Centre

Peninsula Community Legal Centre

Southport Community Legal Centre

Springvale Monash Legal Service

SRC Legal Service, La Trobe University

Tenants Union of Victoria

Victorian Aboriginal Legal Service Co-operative Ltd

West Heidelberg Community Legal Centre

Western Suburbs Legal Service

Women's Legal Service

Professional Organisations

Law Institute of Victoria

Lawyers Engaged in Alternative Dispute Resolution

Victorian Bar

Universities

Deakin University

La Trobe University, School of Law & Legal Studies

Monash University, Law School

University of Melbourne, Law School

Victoria University, Faculty of Business & Law