Introduction: Theoretical and comparative perspectives on not-for-profit law

Not-for-profit law is currently very much on the political and legal agendas across the English-speaking world. In England and Wales, major reform to the law of charity was undertaken in 2006; since then, specific topics in not-for-profit law, for example, the charitable status of independent schools and religious groups, the proper role of the charity regulator, and the availability of tax privileges to those who donate to charity, have been the subject of intense and often bitter public debate. In Australia, Hong Kong, Ireland, New Zealand, Northern Ireland and Scotland, not-for-profit law – especially charity law – has either been reformed in substantial ways in the past ten years or reform is currently in train. Changes to the tax treatment of charities in the United Kingdom and the possibility of tax reform for not-for-profits in Australia have provoked strong reactions. In Australia, Canada, New Zealand and the United States, the proper legal response to political advocacy on the part of not-for-profits continues to be the subject of judicial scrutiny and lively public discussion, and in Australia the High Court has recently considered that question, as well as the legal distinction between charities and state-controlled entities and the proper tax treatment of the commercial activity of not-for-profits. All of this suggests that in many countries not-for-profit law is a matter of public concern and importance in an unprecedented way at the present time.

While at the present time there would seem to be an unprecedented public policy focus on the not-for-profit sector, recent reforms to not-for-profit law can scarcely be presented as a narrative of uninterrupted progress. The regulatory activities of the Charity Commission for England and Wales since the enactment of the Charities Act 2006 have been severely criticised and there is now talk of winding back the powers of the Commission and some of the demands of the law of charity in that jurisdiction. In Australia, in 2013, the Commonwealth Parliament enacted a landmark statute defining charity, but since then a new government has been elected that, at the time of writing, has vowed to repeal the act and clip the wings of the nascent regulator of not-for-profit activity in that country, the Australian Charities and Not-for-Profits Commission.