This word sits in our legislation like a turd in a punchbowl

One such word is “benevolent” - well-meaning, charitable - which has almost entirely disappeared from conversational use except in the phrase “benevolent dictator”.

The only other context where the word “benevolent” is still meaningful is in Australia’s tax laws, which provide special tax breaks for Public Benevolent Institutions (PBIs) - in particular, it lets them receive tax-deductible donations.

A PBI is, according to the tax office, a particular kind of charity - a charity whose main purpose is to relieve poverty, sickness, suffering or disability, more or less directly.

That’s basically the philanthropic tradition we inherited from the British ascendancy (think Lady Bountiful delivering nourishing soup to the cottages of the deserving poor).

The word “benevolence” is the problem. It sits in the legislation like a turd in a punchbowl.

The trouble is that “benevolence” isn’t simply old-fashioned or unclear, it’s actively opposed to modern notions of self-help, autonomy and dignity.

Anything that affects tax rates is going to be contested, and the latest legal argument emerged when a charity called Equality Australia Ltd (EAL), with a goal of “changing laws and social practices that were injurious to LGBTQI+ persons”, applied to the Australian Charities and Not-for-profits Commission (ACNC) to be registered as a PBI.

The ACNC knocked it back on four grounds:

1. Working to change laws isn’t “the direct and immediate relief to people suffering poverty, sickness, destitution, helplessness, misfortune or distress which is required for an entity to be a PBI”;
2. Working to change laws involves political lobbying and advocacy, which disqualified EAL as a PBI;
3. Not all LGBTQI+ people experience distress, and so helping them was outside the PBI role;
4. The needs addressed by a PBI had to be such as to arouse pity and compassion, and these weren’t.

Equality Australia Ltd took the decision upstairs to the Administrative Appeals Tribunal (AAT), which knocked the ACNC back on most of its points.

No, under current usages of the term, a PBI didn’t have to play a direct and immediate role in providing relief: “...activities that are inherently prophylactic [preventative] in nature can still be regarded as the stuff of a public benevolent institution.”

No, political lobbying isn’t a disqualification: “positive engagement with government was often a necessary feature of charitable work, and charities are often required to work with the government, and must compete for its attention.”

Even if not all LGBTQI+ people experience distress, they do experience stress: “the stress of members of minorities who are treated differently” [because of] “structural discrimination that manifests in a range of discriminatory practices and experiences in the lives of many people who identify as LGBTIQ+”.

Having rejected most of the ACNC’s arguments, however, the Tribunal then rejected Equality Australia Ltd, finding that “an entity that is organised to advocate for reform and change is (at least in this instance) too far removed from the traditional concepts of benevolence, even allowing for the evolution that has occurred in our understanding of that term”.

As not-for-profit law doyen and guru Myles McGregor-Lowndes commented in his Legal Case Reports Series, “’benevolence’ is a concept from a long past age, evoking notions of soup kitchens.

“The requirement that those needing its aid should arouse ‘pity and compassion’ is paternalistic and reflects an outdated view of disadvantage and disability.

“Such 1930s notions are no longer a definitional touchstone, and, given the trajectory of community thought, will increasingly become irrelevant.”

McGregor-Lowndes suggested a few options for updating the notion of benevolence:

• that the ACNC pull its finger out (“adopts public guidance that is progressive”)
• that the courts pull their finger out (“provide [better] guidance on the definition”)
• that the Parliament pull its finger out (“intervenes with a statutory definition”).

None of those things happened.

Equality Australia Ltd appealed the Tribunal’s decision to the Federal Court, which upheld the Tribunal, basically because there’s no way around the fact that the word “benevolence” still carries that poisonous undertone of “nourishing soup”.

The federal Minister for Charities, Andrew Leigh, has now cut through the crap (thanks - this is what leadership looks like) and simply got the government to add Equality Australia Ltd to the tax office’s list of deductible gift recipients (DGRs), or organisations whose donors get a tax break.

This has, naturally, attracted opposition from religious conservatives and the Murdoch press, but it’s the right thing to do - up to a point.

If the rule is stupid and misguided, and it is, the best way to fix it is by changing the rule, not by approving case-by-case exceptions.

(Hey, not-for-profits. Get on the blower to the minister today. Can’t hurt.)

Why do we Australians and bureaucracies so often let ourselves be tied down by the misconceptions of our semi-colonial great-great-grandparents? Why is it so hard to fight through the cobwebs?

Let’s throw “benevolence” into the rubbish bin of history and encourage actual reform at every bloody level.

We’re not talking revolution – we’re talking improving our communities.

Bravo, Andrew Leigh - this is what a Minister for Charities should do.

And thank you, Equality Australia Ltd staff and board members, for not giving up.

Denis Moriarty is group managing director of OurCommunity.com.au, a social enterprise that helps the country's 600,000 not-for-profits.