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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-12-03 Daily Xml
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Ministerial Statement

TRUSTEE ACT

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (15:19): I seek leave to make a ministerial statement.

Leave granted.

The Hon. J.D. HILL: This ministerial statement is about the Trustee Act, and I table draft amendments to the Trustee Act 1936 for consultation. Members will recall during the passage of the then health care bill, the government made a commitment to the parliament that incorporated health advisory councils established under that bill would continue to hold and receive donations and bequests previously held by the local incorporated hospitals in trust for those local hospitals.

This commitment was reflected in the provisions of the Health Care Act 2008 which gave the necessary powers to incorporate health advisory councils to undertake these functions. Donations and other gifts to an incorporated health advisory council will only be tax deductible if the health advisory council is endorsed by the Australian Taxation Office as a deductible gift recipient for the operation of its gift fund. The gift fund, in turn, must be established and maintained by the health advisory council as a valid, charitable trust.

Not long before the act came into force and as the department of health was preparing to progress the applications for deductible gift recipient endorsement of the tax office, the tax office advised that incorporated health advisory councils could not be so endorsed because they were not a public hospital or a charity.

Further, a health advisory council could not be endorsed for its gift fund because any trust established by the health advisory council solely for the purposes of distributing money, property or benefits to government institutions (namely, public hospitals or public ambulance services) would not, in the tax office's view, be a valid charitable trust because of its connection to government. This view was based on statements in certain English and Australian cases that government entities could not be the objects of valid charitable trusts. The tax office's advice caused concern to the health advisory councils and the country community more generally, to whom the commitment was made that health advisory councils would continue to be able to establish and manage gift funds, including any existing ones in their community.

An amendment to the Trustee Act 1936 to address validity of the gift funds as charitable trusts has now been the subject of ongoing discussions with the tax office, and I have now tabled the bill to reassure parliament, the health advisory councils and, more generally, the country community that the government is committed to resolving these concerns.

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