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Administrative Appeals Tribunal upholds ACNC's decision on Waubra Foundation

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Waubra Foundation and Commissioner of Australian Charities and Not-for-profits Commission [2017] AATA 2424 (4 December 2017)

In the first decision of the Administrative Appeal Tribunal (the AAT) on the interpretation of the Australian Charities and Not-for-Profits Commission Act 2012 (Cth) (the ACNC Act) and the Charities Act 2013 (Cth) (Charities Act), the AAT has affirmed a decision not to register the Waubra Foundation (Foundation) as a ‘health promotion charity’.

The Foundation was established in 2010 to focus on the adverse health effects which it attributes to wind farms. Shortly after establishment, it was endorsed by the Commissioner of Taxation as a deductible gift recipient (DGR) under the Income Tax Assessment Act 1997 (Cth) on the basis that it was, among other sub-types, ‘a charitable institution whose principal activity is to promote the prevention or the control of diseases in human beings’. By operation of transitional provisions, after the establishment of the ACNC in 2012 and the subsequent passage of the Charities Act, the Foundation was taken to be registered as a charity under four of the fourteen subtypes under s 25-5(5) of the ACNC Act.

The ACNC is empowered to revoke registration of a registered entity if the Commissioner reasonably believes, among other things, that at any time after the date of effect of the registration, the entity is or was not entitled to registration. In 2014 the ACNC gave the Foundation show cause notices with respect to its registration as a charity of the subtypes:

  • protecting human rights, and
  • with the principal activity of promotion of the prevention or control of diseases in human beings. 

On 23 June 201, the Commission decided that the Foundation had not, since at least 1 January 2014 met either of those charitable subtypes. The AAT has upheld this decision.

It should be noted that the Waubra Foundation’s registration with the ACNC as a charity with the purpose of advancing health and the purpose of advancing public debate has not been affected by these proceedings.

The ACNC will use the AAT's decision to guide its considerations about future charity applications, and thus could affect treatment of other groups claiming to promote health. For more information on health promotion charities visit the ACNC website

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