Charitable Trusts and Discrimination: Two Themes

AuthorMatthew Harding
PositionProfessor of Law, University of Melbourne
Pages227-260
227
(2016) 2(1) CJCCL
Charitable Trusts and
Discrimination: Two emes
Matthew Harding*
In this article, I consider two doctrinal themes available to judges in equity who must
deal with what I call “discriminatory charitable trusts”. In Part II, I concentrate on
the theme of public policy. I review how this theme has been deployed in cases about
discriminatory trusts, charitable and “private”, before turning to some theoretical
considerations that bear on the proper application of the public policy doctrine. In Part
III, I turn to the theme of public benet. I argue that, although the public benet test
applied in equity when working out whether a trust is for a charitable purpose is scarcely
used in responding to discriminatory charitable trusts, it has considerable potential as a
tool for judges seeking to respond in nuanced ways to such trusts. In Part IV, I conclude
by oering some thoughts as to whether judges should opt for the theme of public policy
or the theme of public benet when deliberating about discriminatory charitable trusts.
* Professor of Law, University of Melbourne. Versions of this paper
were presented at the Conference on Succession and Trusts Law at the
University of the Western Cape on 17 April 2015 and at the Law of
Charitable Trusts Colloquium at Université de Montréal on 8 May 2015.
I learned a great deal from each of these events, and my sincere thanks
are due to all those who participated in them. Very special thanks are
due to François du Toit and Matthew Harrington for truly exceptional
hospitality during my visits to Cape Town and Montreal.
228
Harding, Charitable Trusts and Discrimination
I. I
II. P P
III. P B
IV. C
I. Introduction
The problems associated with what, in this article, I will call
“discriminatory charitable trusts” are not new to equity. However,
in the twenty-rst century they have assumed, and may be expected to
continue to assume, greater importance than ever before. In various
jurisdictions in which the political community has organised along
broadly liberal lines, equitable responses to discriminatory charitable
trusts now play out against a backdrop of human rights law, the
constitutional expression of anti-discrimination norms, and a public
culture in which tolerance of discrimination on grounds like race, sex,
and religion is at its lowest point in human history. Such responses also
take their place within legal and intellectual frameworks in which there
is growing scepticism about the plausibility of distinctions between
“public” and “private” spheres and “public” and “private” law. In utilising
extant doctrinal themes to fashion just solutions to old problems, judges
exercising equitable jurisdiction who must deal with discriminatory
charitable trusts are presented with challenges that they have not
traditionally faced.
With such challenges in view, this article will focus on the two main
doctrinal themes available to judges in equity who are asked to determine
whether discriminatory charitable trusts should be interfered with on
account of their discriminatory character. e two themes are public
policy and public benet. In Part II of the article, I consider the theme
of public policy. I review how this theme has been deployed in cases
about discriminatory trusts, charitable and “private”, before turning to
some theoretical considerations that bear on the proper application of
the public policy doctrine in such cases. I conclude that more work must
be done if the theme of public policy is to be rendered appropriately
sensitive to normative considerations underpinning it in cases about
229
(2016) 2(1) CJCCL
discriminatory charitable trusts. In Part III, I turn to the theme of public
benet. I argue that, although the public benet test applied in equity
when working out whether a trust is for a charitable purpose is, perhaps
surprisingly, scarcely used in responding to discriminatory charitable
trusts, it has considerable potential as a tool for judges seeking to respond
in nuanced ways to such trusts. In Part IV, I conclude by oering some
thoughts as to whether judges should opt for the theme of public policy
or the theme of public benet when deliberating about discriminatory
charitable trusts.
At the outset, two points of clarication are in order. First, when I
refer to “discriminatory” trusts, I have in mind trusts the terms of which
explicitly mete out unfavourable treatment to some class of persons based
on the fact that the class shares an element or elements of human identity.
However, I make no attempt to describe or explain the circumstances
in which such discrimination ought to be of moral or legal concern.1
Instead, I rely on what I take to be the intuitive proposition that at least
some instances of such discrimination ought to be of both moral and
legal concern, and I assume that this proposition is sucient to animate
my arguments in this paper. Secondly, when I refer to discriminatory
“charitable” trusts, I describe such trusts as charitable in a provisional
sense only; I mean to refer to the fact that those trusts are for purposes that
are charitable purposes except for the fact that they entail discrimination.
us, I leave open the possibility that such trusts, once the discriminatory
character of their purposes is brought into view, might turn out not to
be charitable all things considered. Moreover, I do not enter into debates
about whether the appropriate response to discriminatory charitable
trusts is to declare them invalid or to vary their terms cy-près: instead, I
pose questions at a higher level of generality about whether such trusts
ought to be “interfered” with in one or another way.
1. I do attempt such arguments elsewhere: see Matthew Harding, Charity
Law and the Liberal State (Cambridge: Cambridge University Press, 2014)
ch 7 [Harding, Charity Law].

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