Commentary by Jeff Hansen, Executive Director, Sea Shepherd Australia Limited
Back in 2010 Sea Shepherd Australia Limited's (SSAL) application to the Australian Tax Office (ATO) for Deductible Gift Recipient (DGR) charity status was refused. Sea Shepherd Australia then submitted an objection to the decision to the ATO that was disallowed with the reason given that the ATO believed that Sea Shepherd does not provide short-term direct care to animals without owners.
DGR charity status is critical to not for profits fundraising as it allows individuals and companies the ability to claim donations in their yearly tax returns.
To be granted DGR charity status an organisation has to fulfill a number of criteria. Specifically Sea Shepherd Australia had to:
- be an institution;
- have a charitable purpose;
- not be political in nature;
- not exist solely for the purpose of caring for native wildlife; and,
- provide short-term direct care to animals without owners
The ATO found that Sea Shepherd satisfied all of these criteria except for the final element; that of providing short-term direct care to animals without owners. The ATO stated that Sea Shepherd Australia does not provide a physical shelter to whales, so it was not eligible to receive charity status.
So basically, the ATO’s position was that if Sea Shepherd Australia’s primary activity was to wait for marine animals to be harmed, then bring them into a shelter for treatment and release, we would obtain our charity status. Instead, because we intervene and prevent whales from needing assistance, we are not eligible. So in this case, cure is better than prevention.
In order to appeal this decision, SSAL took the ATO to the Administrative Appeals Tribunal (AAT). To be effectively represented at the AAT, SSAL needed a barrister. With months of searching and false promises, SSAL finally found a brilliant, passionate and hard working barrister, Jonathan Korman.
One thing that never ceases to amaze me in my time with Sea Shepherd is the level of support and passion we receive from the public for what we do. However, the support we have received from Barrister Jonathan Korman has been second to none. Jonathan has been so dedicated to our cause that he provided his services entirely pro-bono.
The result of the AAT trial and the subsequent Federal Court appeal went against SSAL, with the court ruling that SSAL was not eligible to receive DGR status "because it was not a charitable institution whose principal activity was providing short-term direct care to animals (but not only native wildlife) that have been lost or mistreated or are without owners.”
However, given that the decision in the Federal Court was a split decision, with one judge finding in Sea Shepherd’s favour, SSAL has applied for special leave to appeal to the High Court.
Even though volunteers undertake most of Sea Shepherd’s work, which allows us to maximise the public donations into direct action, and even though Sea Shepherd is the only organisation defending the lucrative whale watching industry, worth an estimated AU$360 million, at this stage it appears we are not eligible to receive DGR charity status.
However thanks to Jonathan Korman, SSAL will continue in the fight to obtain our DGR charity status.
Time and time again Jonathan has enabled our donations to be directed straight towards our ships and not tied up in legal fees. Quite simply, our vessels would not leave port if it weren’t for the support, passion and dedication of people like Jonathan. Jonathan is just as critical and important as any of our crews on the front line and just as much a part of every success and victory we have in the battle to save our oceans.
So much of our life-giving oceans are dying through ocean acidification and climate change, plastic pollution, fertilisers and over fishing.
With up to 80 percent of every breath we take coming from our oceans, I believe that the battle to save our oceans is the most important issue humanity should be focusing on.
A battle worth fighting for, the battle for life!
Thank you Jonathan for all you have done and continue to do for Sea Shepherd.