Problem Brief 2 part 11 questions and answers PDF

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Problem (11). Advise on the validity, content, scope of effect and operation and general merits of the purported Referendum Education Trust. Answer: The Trustee shall receive and hold the trust property upon trust to sell, call in and convert the same to investments consistent with the provisions of the Trustee Act (in this instrument called “the trust fund”) and to thereupon divide the same into five (5) equal portions (for the purposes of this instrument, each of such portions to be called a “share”) and to and thereafter to hold all of such shares on trust respectively as follows: Terms of the Trust as to the third of such shares, in trust to be expended on supporting any organisation that pursues the objective of educating the public as to the desirability of amending the Northern Territory (Self Government) Act (Cth.) to provide for the possibility of citizen initiated referenda on any topic related to public administration; Problems to be Answered 1. Is the purported trust under sub-paragraph 3 (c) effective? 2. If not – why not? 3. If the trust is valid, what is its general meaning and how is it likely to be put into practice? The Three Certainties Paragraph 3(c) demonstrates express intention to create a trust, the subject of which is a one fifth share of the residual property (after gifts) for the purpose of educating the public as to the desirability of legislative change (object). A purpose is not a valid object unless it is deemed to be charitable. See: Morice v The Bishop of Durham (1804) 32 ER 656. Examination of the Purpose? - This particular purpose has two arms. • The first is to educate the public. • The second is related to changing legislation in a specific manner. What is the nature of the purpose? Is it political? or Is it educational? What is a Political Purpose? In England the cases define a political purpose as the process of seeking a reversal of government policy. That will not be considered charitable as “the court has no means of judging whether the proposed change in the law will or will not be for the public benefit”. See: Bowman v Secular Society Ltd [1917] AC 406 Accept Law As It Stands - Also shouldn’t the legal system accept that the law, as it stands, is right? Why would the legal system facilitate challenges to the existing law? English jurists don’t think that would be right!!! See: McGovern v Attorney-General [1982] Ch 321

Not So Clear In Australia - See the case of Royal North Shore Hospital v Attorney General (NSW) (1938) 60 CLR 396 The purpose of the trust in that case was for meeting the expenses of agitating "for legislative or political changes" in respect of a certain focus of interest related to health care. Dixon J said: “A coherent system of law can scarcely admit that objects which are inconsistent with its own provisions are for the public welfare” Dixon J’ in Royal North Shore See: obiter of Dixon J to the effect that if the main purpose was to lobby for legislative change it would be difficult to find ‘the necessary tendency to the public welfare’ to classify it as charitable a valid trust. HH did discuss the question in terms of “tendency to the public welfare”. Is it possible that His Honour left open the possibility of that concept to be a test as to whether a particular political purpose is charitable for the purposes of the principles of trusts. Aid/Watch Inc v FCT [2010] HCA 42 Recently the High Court by majority held: ‘…in Australia there is no general doctrine which excludes from charitable purposes ‘political objects’. HELD: Australian law, as expressed in the Constitution, makes communication between electors and the Government an ‘indispensable incident’ of the political system. For that reason, the court thought that political agitation cannot be seen as inconsistent to the system of law. The court said that lawful stimulation of political debate was a purpose beneficial to the community. Blend of Education and Politics In Attorney-General for NSW v Henry George Foundation [2002] NSWSC 1128 The goal of the purpose was for the promulgation of the teachings and economic principles of Henry George with a view to having them implemented in practical operation. Held that trust was valid. Even though the Foundation’s ultimate hope was legislative reform, that objective was subsidiary to the main educational purpose of expanding knowledge about the teachings of Henry George. Congregational v Thistlethwayte Australian courts are more elastic in their application of the charity principles. See: Congregational Union of NSW v Thistlethwayte (1952) 87 CLR 375 HELD: A trust would be classified as charitable even where there were goals that would enable the pursuit of objectives, ancillary to the primary charitable purpose, that were not charitable. Conclusion 1. In considering the construction of the trust in paragraph 3(c) it is tenable to say that the main focus of this purpose is that of educating the public about a specific legislative change. 2. Unless it can be fairly said that the purpose’s main focus is the agitation for legislative change itself, it is likely that an Australian court will be guided by factor 1 above. 3. The spirit and intendment of the Statute of Elizabeth, and the analogous cases cited above, strongly suggest that the trust declared in paragraph 3(c) is a valid charitable trust for the advancement of education....