A Private Line to the Minister

The Labor government is overriding our courts and regulators to hand-pick which advocacy groups get tax-deductible status.

In a recent Senate Estimates hearing, I questioned why Equality Australia was granted specific Deductible Gift Recipient (DGR) status in the 2025 Budget, despite being rejected by the Australian Charities and Not-for-profits Commission (ACNC), the Administrative Appeals Tribunal (AAT), and the Full Federal Court. All three bodies ruled that their work is political advocacy, not “direct benevolent relief.”

When I asked for the legal basis or the principles used to bypass these independent determinations, the government hid behind “Cabinet confidentiality.”

This isn’t just about one group; it’s about the integrity of our tax system. We cannot have a system where groups who lose in court simply lobby a Minister for a custom-made law.

— Senate Estimates | December 2025

Transcript

Senator ROBERTS: My questions are actually brief, but I have to untangle the acronyms. I have to give you some background first to set up my questions. Equality Australia applied for public benevolent institution status in 2020 and was rejected by the Australian Charities and Not-for-profits Commission because its primary purpose was advocacy and law reform, not direct benevolent relief. The Australian Charities and Not-for-profits Commission found its activities were ‘too indirect’ to qualify as benevolent relief. The Administrative Appeals Tribunal upheld the Australian Charities and Not-for-profits Commission’s decision. The Full Federal Court dismissed Equality Australia’s appeal in September 2024, confirming that advocacy and campaigning for law reform did not meet the statutory definition of a public benevolent institution.  

After losing in court, Equality Australia wrote to Assistant Minister Andrew Leigh in November 2024, seeking a specific listing for deductible gift recipient status under the Income Tax Act 1997. Cabinet approved the listing in early 2025 and the March federal budget included Equality Australia as a named deductible gift recipient entity for five years. Media commentary highlights concerns that this decision effectively overrode determinations by three accountability bodies, the Australian Charities and Not-for-profits Commission, the Administrative Appeals Tribunal and the Federal Court.  

My questions are: why did Treasury support a specific deductible gift recipient status listing for Equality Australia after the Australian Charities and Not-for-profits Commission refused public benevolent institution status, the Administrative Appeals Tribunal affirmed and the Full Federal Court dismissed the appeal on 5 September 2024 all on the basis that Equality Australia’s activities are advocacy, not direct benevolent relief? What principles justify overriding three independent determinations?  

Ms Berger-Thomson: Decisions made on DGR-specific listings are decisions of cabinet.  

Senator ROBERTS: Minister, what principle justifies overriding three independent determinations?  

Senator Gallagher: I don’t have anything further to add to that. I’m not aware of it.  

Senator ROBERTS: Could you take it on notice?  

Senator Gallagher: I’m happy to take it on notice.  

Senator ROBERTS: Did Treasury advise cabinet that a specific listing bypasses the ordinary deductible gift recipient pathway for a single organisation?  

Ms Berger-Thomson: Typically, we do provide advice on specific listings. Specific listings are only for those organisations that do not qualify for any of the other 52 DGR categories that are administered by the ATO.  

Senator ROBERTS: You did give advice?  

Dr Johnson: It’s not appropriate to talk about cabinet material in Senate estimates.  

Senator ROBERTS: What about Treasury advice?  

Dr Johnson: That’s Treasury advice for a cabinet process.  

Senator ROBERTS: You can’t provide it on notice?  

Dr Johnson: No, not in relation to things that relate to a cabinet process.  

Senator ROBERTS: That’s pretty handy. I have two final questions: on what legal basis did Treasury rely to proceed where the courts found the activities did not meet the public benevolent institution test? Secondly, how does Treasury ensure consistency with the statutory meaning of ‘benevolent relief’ used by the Australian Charities and Not-for-profits Commission, the Administrative Appeals Tribunal and the Federal Court, when recommending by name a deductible gift recipient? What legal basis did Treasury rely on?  

Senator Gallagher: As to specific listings—there are a few every budget that the ERC or the government considers when other avenues have been exhausted. That reflects a decision of government.  

Senator ROBERTS: I want to know what legal advice Treasury received.  

Senator Gallagher: Treasury provide advice on the listings that come before us. Ministers get briefed appropriately, but ultimately it’s a decision for government.  

Senator ROBERTS: Why did the government ignore or bypass three institutions with experience in this area and responsibility for this area—the Federal Court, the Administrative Appeals Tribunal and the Australian Charities—  

Senator Gallagher: I’ve taken that on notice. I was just more generally saying how the decisions are taken. 

Senator ROBERTS: Could you provide an answer to that?  

Senator Gallagher: I have undertaken to do that.  

Senator ROBERTS: And also the basis for the decision?  

Senator Gallagher: Yes, I have taken that on notice.