Pauline Ridge

Legal Neutrality, Public Benefit and Religious Charitable Purposes: Making Sense of Thornton v Howe

Thornton v Howe (1862) concerned a trust to promote the works of Joanna Southcott, a millenarian prophetess. Sir John Romillys assertion of legal neutrality towards religion sits uneasily with the outcome of the case, but a contextual study shows that Romilly was sincere and that in its heyday Southcotts sect was a significant group with particular attraction for women. By the time of this litigation, however, her dwindling following was ill-equipped to administer the inadequate trust fund and prolonged litigation. Although Romillys neutrality approach was correct at the time, it was overtaken by the impetus for greater scrutiny of religious charitable purposes through a requirement of public benefit.

New Directions for Law in Australia

1 Professor, Law School, University of Queensland. 2 Joan Rydon, ‘The Electorate’ in John Wilkes (ed), Forces in Australian Politics (Angus & Robertson, 1963) 184. 3 Holmdahl v AEC (No 2) [2012] SASFC 110. See Anne Twomey, ‘Compulsory Voting in a Representative Democracy: Choice, Compulsion and the Maximisation of Participation in Australian Elections’ (2014) 13 Oxford University Commonwealth Law Journal 283. 4 Josh Butler, ‘David Leyonhjelm Proposes Abolishing Compulsory Voting’, Huffington Post, 2 March 2016 (Leyonhjelm is a libertarian senator). Voluntary Voting for Referendums in Australia: Old Wine, New BottleProof exists that Law Reform Commissions can still discharge a distinct and effective role in the reform of law and legal policy. In February 2017, some months after the essays that make up this important book were presented at an Australian National University Conference, the Attorney General issued terms of reference for an inquiry by the Australian Law Reform Commission (ALRC) into the incarceration rate of Aboriginal and Torres Strait Islander peoples. Judge Matthew Myers was appointed part time Commissioner, an expert advisory panel of academics and practitioners was installed, discussion paper drawing together the findings of previous inquiries was issued in July, 149 consultations were undertaken in the community, 121 submissions were received and by December an incisive and plainly written report analysing the causes and including 35 recommendations for reducing the rate of incarceration was delivered.Anyone looking at the Corporations Act 2001 (Cth) would be justified in thinking that company law in Australia was both wholly statutory and an instrument of public regulation. Although Anglo-Australian company law may have originally grown out of the law of partnership and been built, largely by the courts, from the material of the private law, the growth over the last 30 years in the complexity, range of matters covered and sheer volume of the Corporations Act would seem to confirm the intuition that Australia’s company law is now both statutory and public. However, while there is no denying the shift in the source of company law, the particular form corporate regulation now takes is actually making Australian company law more, rather than less, private.1 Professor, Faculty of Law, Monash University. 2 R v Birmingham & Gloucester Railway Co (1842) 3 QB 223. 3 US Department of Justice, ‘Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act Violations and Agree to Pay

Accessories in Private Law: Breach of equitable duties

450 Million in Combined Criminal Fines’ (Press Release, 15 December 2008). Improving the Effectiveness of Corporate Criminal Liability: Old Challenges in a Transnational World1 Lecturer, Business School, Charles Darwin University; PhD candidate, School of Politics and International Relations, ANU. This research is supported by an Australian Government Research Training Program (RTP) Scholarship. 2 Australian Council of Social Service (ACOSS), Inequality in Australia 2015: A Nation Divided (Sydney, 2015) 8, www.acoss.org.au/wp-content/uploads/2015/06/Inequality_in_Australia_ FINAL.pdf (viewed 24 April 2016). 3 Factor income is the income arising from the factors of production – land, labour and capital. For the changes in shares over time, see Australian Bureau of Statistics (ABS), ‘Income at Current Prices, December Quarter 2015’ in ABS, 5206.0 – Australian National Accounts: National Income, Expenditure and Product, Dec 2015, www.abs.gov.au/ausstats/ abs@.nsf/Latestproducts/ 5206.0Main%20 Features 4Dec%2

Law, Tolerance and Religious Schools in Australia

Introduction Overview The principles governing accessory liability for breach of an equitable duty are to be found within the broader principles that govern third-party participatory liability in equity. This chapter sets out the principles of accessory liability within that broader context, including recipient liability. The law governing accessory liability specifically, and participatory liability generally, is confused in some respects and differs across jurisdictions. The confusion is attributable in part to the extraordinary influence of one nineteenth-century Court of Appeal in Chancery decision, Barnes v. Addy , and specifically, Lord Selborne LCs ex tempore leading judgment. Barnes v. Addy concerned claims against two solicitors who acted in relation to the appointment of a sole trustee to a testamentary trust. The beneficiaries sought redress against the solicitors for the trustees misappropriation of the trust fund. Lord Selborne was anxious to protect professional agents, particularly solicitors and bankers, acting honestly ‘as the agents of trustees in transactions within their legal powers’ and dismissed the beneficiaries’ appeals. His Lordship did not purport to change the law or to expound generally on the liability of third parties to breach of trust. Nonetheless, during the latter part of the twentieth century, his brief statement as to two exceptional circumstances in which agents of trustees would be liable for a trustees breach of trust transmogrified into an inflexible template for equitable participatory liability generally, regardless of whether the participant was an agent or not and irrespective of the nature of the participants conduct or the primary wrong in question. A distinction was drawn between participants who were involved in the primary wrong through knowingly receiving trust property and those who assisted in egregious breaches of trust (later extended to breach of fiduciary duty more generally) without necessarily receiving property. Little or no attention was paid to primary wrongs other than breach of trust and fiduciary duty. The so-called ‘two limbs’ of Barnes v. Addy were often applied in a formulaic and literal fashion. This need not have been so. In contrast to the jurisdictions focused upon in this chapter, the Barnes v. Addy template has not dominated the United States’ jurisprudence on the topic. In recent times, there has been a move away from the Barnes v. Addy template in most jurisdictions, but with mixed results. Broadly speaking, there are currently two frameworks used to determine participatory liability for breach of trust and fiduciary duty.

Legal and Ethical Matters Relevant to the Receipt of Financial Benefits by Ministers of Religion and Churches: A Case Study of the New South Wales Synod of the Uniting Church in Australia

Religious schools in Australia are operated by religious groups to provide a primary or secondary education that satisfies the state’s compulsory education requirements within the framework of these groups’ religious beliefs and practices. From time to time, public interest in religious schools is sparked by media reports concerning their operation. Often, the public debate concerns the science curriculum: whether creationism or ‘Intelligent Design’ theories should be taught, for example; however, other aspects of religious schools’ operation also receive attention. In August 2004, for example, two media stories concerning religious schools were current. The first concerned an Adelaide secondary school operated by the Church of the Brethren.1 The school received adverse media attention because it did not allow computers or other information technology within the school.2 The second story concerned a sect known as the Order of St Charbel.3 A school operated by the sect came under scrutiny because of the doomsday teachings of the sect’s leader whose headquarters were located within the school’s grounds.4 Both schools received substantial federal government funding (a fact that featured prominently in the media discussion).

Religious charitable status and public benefit in Australia

This paper discusses some of the findings of a research project on the use of spiritual influence for financial gain, using the New South Wales Synod of the Uniting Church in Australia (UCA) as a case study. The paper begins with the hypothesis that regulation is required with respect to the receipt of financial benefits by ministers of religion and religious bodies from those under their spiritual care. Current legal and ethical regulation is briefly outlined before the project’s findings are discussed. Semistructured interviews were conducted with leading players in the New South Wales Synod, who were asked to recount stories relating to the receipt of financial benefit that they perceived to constitute an abuse of spiritual influence for financial gain. It was found that at least two general scenarios existed which caused concern to interviewees but which were not regulated by law. The paper describes examples of these scenarios and considers whether they raise legal or ethical concerns.