Chapter 21: The Advancement of Culture

In the development of the common law, cultural purposes that have been found to be charitable have often been required to establish their entitlement to charitable status under the `advancement of education' head of charity.

Nevertheless, the courts have shown a willingness to construe a wide range of purposes directed towards increasing the public appreciation of art, music or literature as educational purposes. This has been the case even though any educational value stems almost entirely from visual or auditory observation, not from instruction or training. The case law in this area often reflects the (not uncontested) ideal that appreciation of the arts is the hallmark of an educated and civilised person.¹

While noting the largely unambiguous interpretation within the common law that culture satisfies an educational purpose, the Committee considers there are strong grounds for recognising cultural purposes as charitable in their own right by establishing `the advancement of culture' as a new and separate head of charity. A dedicated head of charity for cultural purposes will obviate the need for such purposes to be assessed on the basis of their educational merit. It will also provide clarity and certainty for organisations in the cultural sector.

Culture is broader than `the arts'. Culture is a reflection of our humanity, of how others see us and how we see ourselves. As David Malouf has commented in regard to the way in which culture helps establish a nation's identity:

The uniqueness of a people can be invisible to those who know it only as an everyday thing. We do not always see, from within, the extent to which the things that we make are intimate reflections of us, of a local way of doing things, of thinking and feeling and interpreting. We delight in the energy these things give us, the sense we get of being alive and in our own skins. What we do not see is that the energy itself is of a unique kind, that there is a peculiar freshness and originality in the way we take what is classic and remake it as our own. It is here, unconsciously perhaps, that we catch the clearest image of ourselves as Australians; and this confirmation of identity too we take back into our lives and use in all sorts of productive and imaginative ways. What outsiders recognise as original and unique, we experience simply as what we are, what we have discovered by reflection from what we have made, and which nothing else could have revealed to us.³

In the Committee's view, the expression of a nation's identity comes equally through its built heritage as it does through its art and culture.

Culture provides a broad public benefit through the enriching effect it has on the lives of individuals, which translates into an enrichment of society as a whole. This contemporary rationale for the public benefit of culture is drawn in large part from the many judgments which have found an intrinsic public benefit in art and cultural purposes, albeit related to the advancement of education.

The Committee acknowledges the argument put by the Australia Council that participation in arts and cultural activities is strongly related to other forms of civic engagement and social capital, and that cultural programs help strengthen diverse communities and bind communities together. The Council added that the arts provide a public benefit - that is, beyond the benefit to those who attend or participate in events - in terms of generating positive externalities such as enhanced international prestige for the country.

The Committee also notes that the Commonwealth Government's granting of deductible gift recipient status to cultural organisations through the operation of the Register of Cultural Organisations recognises the public benefit of culture. The recognition of culture as a separate head of charity will serve to reinforce this.

The establishment of `the advancement of culture' as a specifically recognised head of charity carries with it a general presumption that purposes under that head provide a public benefit. Nevertheless, the Committee notes that the courts have held in a number of cases that the element of public benefit has not been satisfied because the purpose lacks practical utility. For example, in Re Pinion the English Court of Appeal held that the gift of a studio and its contents to the National Trust to be set up as a museum was not charitable, because on the basis of expert opinion the contents of the studio were virtually worthless.<sup>5</sup> Harman LJ said `I can conceive of no useful object to be served by foisting upon the public this mass of junk. It has neither public utility nor educative value.'⁶

Thus in recommending a separate head of charity for `the advancement of culture' the Committee emphasises that it does not see this as weakening the requirement that cultural purposes must satisfy the public benefit test. In particular, the test for practical utility should continue to be applied rigorously by the courts, as any dilution of this element carries the risk that the public will lose confidence in the integrity of the system.

The Committee considers that the following non-exhaustive list of purposes is indicative of the types of purposes that would fall within the `advancement of culture' head of charity:

• the promotion of and participation in the arts, including literature, music, the performing arts and visual arts. This should be taken to include the various art forms currently recognised on the Register of Cultural Organisations, such as craft, design, video, television, film and community art;

• the establishment and maintenance of public museums, libraries and art galleries, and movable cultural heritage;

• the promotion of Australian indigenous culture and customs;

• the promotion of the culture and customs of various language and ethnic groups; and

• the protection and preservation of national monuments, areas of national interest and national heritage sites and buildings.

1 Dal Pont, G 2000, Charity Law in Australia and New Zealand, Oxford University Press, Melbourne, p 134.

2 [1943] 2 All ER 101 at 105.

3 Malouf D July 1999, Foreword to Securing our future: Major performing arts inquiry, Discussion paper.

4 Weil, S 1995, A Cabinet of Curiosities: Inquiries into Museums and their Prospects, Smithsonian Institute Press, Washington.

5 Ford, HAJ and Lee, WA 1990, Principles of the Law of Trusts, 2^nd edition, The Law Book Company, Sydney, p 846.

6 Re Pinion [1965] Ch 85 at 107.