Distinguishing Government from Charity in Australian Law

Government and charity are in the same business, which is to enable the pursuit of, or even directly to pursue, the common good. This article aims to identify an analytic distinction between government and charity notwithstanding that, being in the same business, they are functionally similar. More precisely, the article aims to identify the analytic distinction between government and charity that accords most satisfactorily with Australian law. To that end, the article discusses three concepts that courts in Australia and in England have invoked when seeking to draw a distinction between government and charity: purposes; control; and voluntarism. In Parts Two and Three of the article it is argued that the concepts of purposes and control are of limited assistance when drawing a distinction between government and charity. In Part Four of the article it is argued that, in light of the case law, the best view of what distinguishes government from charity in Australian law points to the fact that government is characterised by administration whereas charity is characterised by voluntarism. This conclusion, while not consistent with all of the decided cases, is consistent with the substantial