June 2004

1.0 Introduction 3

2.0 Template and Terms of Reference 4

3.0 The Relevant Laws 4

4.0 The Relevant Provisions of the 1997 Constitution 5

4.1 Freedom of Expression............................................................... 5

4.2 Freedom of Assembly................................................................ 6

4.3 Freedom of Association.............................................................. 7

5.0 The Charitable Trusts Act (Cap 67) 8

5.1 Types of Organizations.................................................................. 8

5.2 Purposes...................................................................................... 9

5.3 Registration and Incorporation Requirements.................................. 10

5.4 Cancellation of Incorporation........................................................ 11

5.5 Inspection of Records................................................................... 12

5.6 General Powers........................................................................... 13

6.0 Governance 13

7.0 Extension of Charitable Trusts 13

8.0 Miscellaneous 14

8.1 Annual Reports........................................................................... 15

8.2 Exclusion of Religious bodies........................................................ 15

9.0 Tax Laws 15

9.1 Exemption from Income Tax......................................................... 15

9.2 Who Determines Tax Exemption.................................................... 16

9.3 Zero Rating for VAT..................................................................... 17

9.4 Reliefs to donors......................................................................... 18

9.5 Contributions by Estates or under will............................................ 18

9.6 Endowments............................................................................... 18

9.7 Reporting................................................................................... 18

10.0 Compliance……………………………………………………………………………...19

11.0 Government Funding……………………………………………………………...20

12.0 Conclusion………………………………………………………………………………..20

13.0 Laws Referred to in the Report……………………………………………….22

14.0 Appendix……………………………………………………………………………………23

1.0 Introduction

This Paper is being written for the International Center for Not-for-Profit Law (ICNL) as part of their Civil Society Project in the Pacific. In this paper the relevant laws relating to Civil Societies and Non-Governmental Organizations in Fiji are analyzed.

The principal legislation governing civil society organizations (CSOs) and non-governmental organizations (NGOS) in Fiji is the Charitable Trusts Act (Cap 67). The other laws that impact the NGOs are the 1997 Constitution, the Value Added Tax Decree 1991 and the Income Tax Act (Cap 201).

The only other notable study on the laws governing the non-governmental organizations (NGOs)[1] in Fiji has been carried out by this writer in 2001 when he prepared and presented a paper, “Charity Law in Fiji”, in Brisbane in October 2001.[2] Various relevant excerpts from that paper have been modified for use in this paper.

2.0 Template and Terms of Reference

The template recommended for the drafting of the country report for the “Law and Society in the South Pacific Project” has been followed in this paper. This report has been set following the recommended template and deals with the following broad areas:

(i) The relevant laws,

(ii) The 1997 Constitution,

(iii) The Charitable Trusts Act,

(iv) Governance,

(v) Extension of charitable trusts,

(vi) Miscellaneous,

(vii) Tax Laws,

(viii) Compliance,

(ix) Government Funding, and

(x) Conclusions.

3.0 The Relevant Laws

Most of the NGOs in Fiji seek registration and equally recognition under the Charitable Trusts Act (Cap 67). The Charitable Trusts Act provides for the incorporation of the trustees of charitable and other trusts, for the extension of charitable trusts, and for other purposes connected with the trust.

4.0 The Relevant Provisions of the 1997 Constitution

The Constitution of the Republic of the Fiji Islands, which is the supreme law[3] of the State, provides that every person has the right to freedom of expression,[4] assembly,[5] and association[6]. These freedoms are however subject to certain limitations.

The word “person” in section 194 (1) of the 1997 Constitution is defined as including “… a company or association or body of persons whether corporate or unincorporated”. Since body of person’s form, NGOs, it could be effectively argued that an NGO is a ‘person’ and therefore any NGO can claim the right to freedom of expression, assembly, and association, under the 1997 Constitution.

4.1 Freedom of Expression

The Constitution expressly provides that “every person has the right to freedom of speech and expression, including; (a) freedom to seek, receive and impart information and ideas; and (b) freedom of the press and other media.”[7]

The right to freedom of speech and expression is limited in the interests of:

“(a) national security, public safety, public order, public morality, public health or the orderly conduct of national or municipal elections;

(b) the protection or maintenance of the reputation, privacy, dignity, rights or freedoms of other persons, including:

(i) the right to be free from hate speech, whether directed against individuals or groups; and

(ii) the right of persons injured by inaccurate or offensive media reports to have a correction published on reasonable conditions established by law;

(d) preventing attacks on the dignity of individuals, groups or communities or respected offices or institutions in a manner likely to promote ill will between races or communities or the oppression of, or discrimination against, any person or persons;

(e) maintaining the authority and independence of the courts;

(f) imposing reasonable restrictions on the holders of public offices in order to secure their impartial and confidential service; or

(g) regulating the technical administration of telecommunications;

but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.”[8]

4.2 Freedom of Assembly

Section 31(1) of the Constitution provides that, “every person has the right to assemble and demonstrate with others peacefully.” However it is qualified to the extent that “a law may limit, or may authorise the limitation of, the right to freedom of assembly:

(a) in the interests of national security, public safety, public order, public morality, public health or the orderly conduct of national or municipal elections;

(b) for the purpose of protecting the rights and freedoms of others; or

(c) for the purpose of imposing reasonable restrictions on the holders of public offices in order to secure their impartial service; but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.”[9]

4.3 Freedom of Association

According to Section 32(1) of the 1997 Constitution “every person has the right to freedom of association”, which however may be limited by a law;

“ (a) in the interests of national security, public safety, public order, public morality or public health;

(b) for the purpose of protecting the rights and freedoms of others; or

4.4 Social Justice and Affirmative Action

Chapter 5 of the 1997 Constitution requires Parliament to make provision for the design of programs “to achieve for all groups or categories of persons who are disadvantaged effective equality of access to:

(a) education and training;

(b) land and housing; and

It further allows a person (which includes NGOs) to take special measures in accordance with “the section for the purpose of achieving substantial equality between different groups or different categories of persons”.[12] It is also stated that a person (including NGOs) “does not discriminate against another person under section 38[13] by taking those special measures.”[14]

While Section 44 (1) of the Constitution requires the State to make provision for programs to achieve for all groups or categories of persons who are disadvantaged effective equality of access to (a) education and training; (b) land and housing; and (c) participation in commerce and in all levels and branches of service of the State, it allows[15] NGOs to develop and implement programs for all groups or categories of persons who are disadvantaged, access to education and training, and, land and housing.

5.0 The Charitable Trusts Act (Cap 67)

The Charitable Trusts Act (Cap 67)[16] (hereinafter referred to as the “Act”) is the sole legislation in Fiji, which offers NGOs an opportunity to be incorporated as a charitable trust and be recognized as a voluntary organization. The Act is a pre-independence law[17] and has been substantially derived from the English, Charitable Trusts Acts.[18]

5.1 Types of Organizations

Fiji is a multiracial, multicultural and a multilingual country, a ‘melting pot’ of people from different works of life. Over the years, many different types, sizes and forms of organizations have been formed to cater for the ever-growing needs of the different communities and the society.

Many NGOs have been formed over the years in Fiji to provide relief to the poor, the under privileged, former prison inmates, school children, women, displaced farmers and other vulnerable and disadvantaged groups. In addition to providing relief many people have organized themselves as groups to form interest based network on women, children and other vulnerable group issues. People from different sects and religious groups have also established faith-based organizations to promote and advance their principles and teachings.

The different NGOs formed in Fiji can be broadly categorized as including: welfare services, rights and advocacy/empowerment, policy development, and, research and development. The basic focus of most NGOs have been on the following areas; health, education, legal, social, civic, arts, cultural and economic development.

There are separate legislation’s, which regulate religious bodies[19], friendly societies[20], clubs[21] (in which liquor is supplied to members or to their guests), trade unions[22] and political parties[23].

5.2 Purposes

Section 3 of the Act, which deals with incorporation of charities, provides that:

“It shall be lawful for the trustees or trustee for the time being of any charity for religious, educational, literary, scientific, or charitable purposes, to apply to the Registrar for a certificate of registration of the trustees of any such charity as a corporate body…”

The Act expressly allows trustees or a trustee of any charity for religious, educational, literary, scientific or charitable purposes, to seek registration as a corporate body. While the Act does not define what religious, educational, literary, scientific purposes mean, ‘charitable purposes’ is defined as including any of the following purposes:

“(a) the supply of the physical wants of sick, aged, destitute, poor, or helpless persons, or of the expenses of funerals of poor

persons;

(b) the education (physical, mental, technical, or social) of the

children of the poor or indigent;

(d) the employment and care of discharged criminals;

(e) the provision of religious instruction, either general or

denominational, for the people;

(f) the support of libraries, reading-rooms, lectures, and classes for the instruction of the people;

(g) the promotion of athletic sports and wholesome recreations and amusements of the people;

(h) encouragement of skill, industry, and frugality;

(i) rewards for acts of courage and self-sacrifice;

(j) the erection, laying-out, maintenance, or repair of buildings and places for the furtherance of any of the purposes herein

mentioned;

(k) such other purpose as may be declared by the Minister to be a charitable purpose;”[24]

The definition of charitable purposes was later expanded by way of a subsidiary legislation to include “the prevention of cruelty to animals and the education and instruction of the people for the furtherance of that end;[25] the furtherance of thrift and the improvement of standards of living by education and advice in matters of self-help;[26] Marriage guidance and counselling, the promotion of education and research in marriage guidance and the publication and the dissemination of the results of such promotion;[27] and the relief of distress caused by any disaster affecting the whole or any part of the community.[28]”

NGOs, which are involved in the above-listed charitable activities in Fiji, can be registered as charitable trusts, together with those established for religious, educational, literary and scientific purposes. It would therefore mean that any organization that does not fall with the above-listed scope of charity could not apply for incorporation as a charity in Fiji.

5.3 Registration and Incorporation Requirements

The process of obtaining recognition, as a charity in Fiji is primarily an administrative matter and largely outside the direct control of other institutions, for instance the Courts. The Act provides for the registration of charities, and organizations seeking charitable status must apply in writing for incorporation under the provisions of the Act[29] to the Registrar of Titles,[30] who has the power under the Act to grant or withhold registration.

The Registrar is the solitary judge and solely determines whether the proposed purposes are, in law, charitable or not. An organization seeking registration under the Act is required to provide the following information to the Registrar of Titles:[31]

· Name of the Board to be incorporated (either as Trust Board or a Society),

· The details of the bodies registered office, name, address and description of the Trustees,

· The method and date of appointment of the trustees,

· The proposed device of the common seal,

· The object of charity,

· A statement of the property, real and personal, which is possessed by or belonging to or held on behalf of the charity, and

· A certified copy of the deed of settlement, will or other document constituting the charity and any regulations made for the charity.

Upon incorporation[32] the Courts conclusively recognize the trustees of the charity. From this it can be clearly assumed that for an organization to be recognized as a charity it would need to be registered under the Act as one, or else it would not be deemed to be a charitable body and neither given recognition by the Courts.

While the act does not outline the process whereby those who have been refused registration can seek recourse, it provides for the cancellation of incorporation.[33]

5.4 Cancellation of Incorporation

Section 13 (1) of the Act provides for the cancellation of incorporation of a trust (NGO or Charity) and it empowers the Registrar of Titles in his or her opinion to cancel registration if:

“(a) the incorporation of a charitable trust was obtained by fraud

misrepresentation or mistake; or

(b) any of the objects of a charitable trust has become unlawful; or

(d) the board of trustees of a charitable trust is not functioning or has become dissolved; or

(e) the board of trustees of a charitable trust is not, by reason of the state of its affairs, able properly to exercise its functions or any of them.”

The Registrar is required to serve a notice in writing to the Board of Trustees of the charity and publish a notice once in the Republic Gazette and in a newspaper circulating in Fiji requiring the trustees to show cause within thirty days of the publication of such notice why the incorporation of the charity (as a Board of Trustees) should not be cancelled. If the Trustees fail to satisfy the Registrar then the incorporation of the Board may be cancelled by notice in the gazette.[34]

The Board of Trustees of the charity cease to exist upon cancellation of the incorporation of the charity as a body corporate, without prejudice to any liability incurred by the Board or its assets whether such liability is incurred before or after the date of cancellation[35]. The Trustees of the charity within fourteen days of cancellation of incorporation are required to return the certificate of incorporation.

Following the cancellation of the incorporation, any of the Trustees may within thirty days of the notification of the cancellation appeal to the High Court against the decision of the Registrar and the high Court has the power to confirm or set aside such cancellation or make such other orders as in the circumstances seems just and equitable[36].

5.5 Inspection of Records

The members of public have a right to inspect the records (register) held by the Registrar of Titles of the registered charitable trusts on payment of a prescribed fee. The inspection of the records can be for the purpose of ascertaining whether or not the trustees have been duly registered, finding out the names and addresses of the trustees and the registered office of the trust.[37]

5.6 General Powers

The Board of Trustees of the charitable trusts (NGO) incorporated under the provisions of the Act have perpetual succession and a common seal, and may hold real and personal property of whatsoever nature, sue and be sued in all proceedings civil or criminal, and do and suffer to be done all that corporate bodies may do and suffer to be done.[38]

All property, whether real or personal, held by the trustees immediately upon their incorporation of the charitable trust is deemed to be vested in the board of trustees upon and subject to the same trusts, powers, contracts, and equities.[39]

6.0 Governance

The Act does not specifically deal with governance issues in relation to the establishment of a charitable trust. The form (contained in the schedule of the Act) which is completed by an organization seeking incorporation as a charitable trust, requires that a copy of the deed of settlement, will or other document constituting the charity be lodged with it.

Most of the organizations that are usually incorporated have a constitution or a deed, which outline in detail various aspects of the governing body, which includes; the powers of the governing body, the kind of officers of the governing body and their duties and obligations, the different meetings and the meeting procedures, voting, quorum, elections and various other matters which the organization’s deem suitable for its needs.

7.0 Extension of Charitable Trusts

The Act provides that where:

· it becomes impossible or impracticable to carry out the trusts upon which any property held for particular purposes of a charitable nature is held, or

· if the amount available proves inadequate to carry out the original charitable purpose, or

· such purpose has already effected, or

· such purpose is illegal or uncertain,

then the property so held or any part or residue thereof may be disposed of for some other charitable purpose, or a combination of such purposes.[40]

This section of the Act allows the property of the organization to be expended or disposed of for other charitable purposes if any of the above-listed situations arises.

Before the property of the organization can be disposed of the Trustees are required to prepare a scheme[41]and submit it to the Attorney General, who upon receipt of the scheme has the power and duty to either:

· remit the proposed scheme to the trustees for amendment if he/she

considers that it will not properly carry out the objects contemplated, and in so doing shall state in writing the objections which he/she entertains to the scheme as proposed;

· report on the scheme submitted, and such report shall be laid

before a judge of the High Court under the provisions of this

Part, or he/she may decline to make any such report, and allow the scheme to be laid before the judge of the High Court;

· file a scheme in the office of the Registrar, and such report and scheme, or the scheme alone if there is no report, shall be open to inspection by the public without any fee or charge.

8.0 Miscellaneous

8.1 Annual Reports

While the Act does not specifically require the filing of any reports and annual returns, Section 3 of the Act allows the Registrar to impose such directions and conditions, as he/she shall think fit in the certificate of incorporation relating to the qualification and number of trustees, their tenure or avoidance of office, the mode of appointing new trustees, and the custody and use of the common seal.

Relying on Section 3 of the Act the Registrar generally places on the Certificate a condition which require the Charities (NGOs) to file annual returns, which essentially is to update his office of the status of the organization.

8.2 Exclusion of Religious bodies

Section 31 of the provides that the Charitable Trust Act shall not affect the operation of the Religious Bodies Registration Act and the provisions of the Charitable Trusts Act shall not apply to any religious bodies registered under the Religious Bodies Registration Act.

9.0 Tax Laws

The main law dealing with income tax in Fiji is the Income Tax Act 1974.[42] Over the years this law has been amended over 40 times. The Income Tax Act is divided into 15 parts and has over 110 sections.

9.1 Exemption from Income Tax

Section 17 of the Income Tax Act deals with incomes that are not taxable, subsection 5 of section 17 provides that, “the income of any institution, body of persons or irrevocable trust of a public character established solely for the relief of the poverty or distress of the public, or for the advancement of religion or education, in so far as the Commissioner is satisfied that such income is to be expanded either in Fiji or for purposes which result in benefit of the residents of Fiji” shall not be chargeable to normal tax, however it is provided that any such income which consists of profits or gain from a business shall not be exempt from normal tax unless such profits or gains are applied solely for any such purposes, which is the advancement of the objects of the Charity or the NGO.

NGOs established solely for the relief of poverty or distress of the public, or for the advancement of religion or education according to this section would need the sanction of the Commissioner of Inland Revenue and satisfy him or her that the income so attained would be reverted to the advancement of the objects of the NGO which is either the relief of poverty or distress of the public, or for the advancement of religion or education.

Subsection 24 of section 17 assists those organizations (clubs, society or association) that are established for social welfare, civic improvement, pleasure or recreation, or for any other purpose except profit to claim normal tax exemption and the NGO is required to show that no part of the income is available for the personal benefit of any proprietor, member or shareholder and in so far as such income is not derived from a trade or business carried on by any such organization.

9.2 Who Determines Tax Exemption

Section 16 of the Income Tax Act empowers the Minister[43] to exempt certain incomes from tax for certain sectors, industries and approved enterprises. Some of those exempted include: interest payable on any loan charged on the public revenue,[44] and income of any co-operative society registered under the Co-operative Societies Act.[45]

The Minister also is given powers to issue Orders or give directive to the Commissioner of Inland Revenue to exempt mining companies and certain approved enterprises from income tax.

There are no specific provisions with respect to NGOs that would allow the Minister to grant exemptions with respect to income tax.

9.3 Zero Rating for VAT

The Value Added Tax Decree 1991, imposes tax at the rate of twelve and half per cent on the supply in Fiji of goods and services,[46] by a registered person in the course or furtherance of a taxable activity carried on by that person, by reference to the value of that supply.[47]

Section 4 of the Decree defines the term “taxable activity” as meaning”

“any activity which is carried on continuously or regularly by any person, whether or not for pecuniary profit, and involves or is intended to involve, in whole or in part, the supply of goods and services to another person for a consideration; and includes any such activity carried on in the form of a business, services, trade, manufacture, profession, vocation, association, or club” and[48] the activities of any local authority or public authority.[49]

The activities carried on by a non-profit body, other than an activity, which in the opinion of the Commissioner is in competition to the disadvantage of any taxable activity carried on by any other is not included as a taxable activity.[50]

However the supply of certain goods and services are zero-rated,[51] which means that no tax is charged on these services and supplies. Some of the supplies and services which are listed as being zero-rated include; the supply of medicines and drugs dispensed on the prescription of a medical practitioner or a registered dentist,[52] supply by the State of water and sewerage services,[53] and the supply of services which are physically performed outside Fiji.[54]

9.4 Reliefs to donors

Section 21 (1) (n) of the Income Tax Act, allows any cash donation by any taxpayer to be deductible expense if the donation is made to the “… the University of the South Pacific Endowment Fund, St. John’s Ambulance Brigade, Fiji Red Cross Society, Fiji Crippled Children’s Society, Fiji Blind Society… and such similar academic and charitable institutions as may be approved by the Commissioner” to the aggregate sum of $50,000.

9.5 Contributions by Estates or under will

The property acquired by gift, bequest, devise or descent is not included as income and is therefore not taxable.[55] If people left certain sum of money or any property in their estate to the benefit of an NGO, the money or property so acquired would not be taxable.

9.6 Endowments

As is with benefits under estates and under will, the proceeds of life insurance policies paid upon death of the insured person insured, or payments made or credited to the insured on life insurance, endowment or annuity contracts upon the maturity of the term are excluded from inclusion as income for the purposes of tax.[56]

9.7 Reporting

The Income Tax Act requires Associations or other bodies to file returns made and signed by the authorised officer of the association or body.[57] The tax return is to be filed on or before 31^st March in each year without notice.

10.0 Compliance

To the best of my knowledge and belief, apart from one other previous study[58] on the laws governing charities and NGOs, no other similar studies have been carried out.

The Charitable Trust Act came under close scrutiny following the de-registration by the Registrar of Titles in June 2001 of the Citizens’ Constitutional Forum (CCF), an NGO that was duly registered under the Charitable Trust Act, for alleged ‘political involvement’.

The CCF was established in 1993 by a group of concerned citizens who wished to see a new Constitution for all Fiji citizens. This particularly was in opposition to the 1990 Constitution, which had a voting system based entirely on race and which provided weak human rights protection. The CCF was a non-partisan civil society group, which encouraged and promoted democratic and open government in Fiji.

The CCF was formally registered as a charity under the Act in 1996 and within a short period of time it contributed immensely to the Constitutional and human rights realm in Fiji. It was a forum that was actively involved in facilitating dialogue, discussion and consultation involving local political and community leaders and numerous international constitutional experts. Following the adoption of the 1997 Constitution, CCF focused its attention mainly on three areas: human rights, multiculturalism and good governance. Following the attempted coup on 19^th May 2000, CCF campaigned against the attempted abrogation of the 1997 Constitution and it supported the legal action[59] challenging that the Commander of the Fiji Military Forces had not effectively abrogated the Constitution and that the Interim Administration was illegal.

The CCF commenced legal proceedings against the President and the Caretaker administration for failing to comply with the judgement of the Fiji Court of Appeal (FCA) when it dissolved Parliament and re-appointed the Caretaker administration. As CCF mounted a legal action challenging the President’s decision, the Registrar sought from CCF as to why its charitable status should not be cancelled as its objects and activities amounted to “political objects and goals and activities” and as such were not within the meaning of ‘charitable purposes’. CCF through its lawyers responded to the Registrar and outlined its position, which was wholly rejected and CCF’s incorporation as a charitable trust cancelled.

CCF did not challenge the Registrar’s decision in the Courts and as such whether the actions and activities of CCF amounted to ‘political activity’ has not been judicially determined.

11.0 Government Funding

Most of the NGOs seek government assistance and are usually given various forms of assistance by the government in Fiji. One very useful machinery is the availability of funds within the Ministry of Regional Development and the Multi-Ethnic Affairs Department. Many NGOs make proposals within their districts, which supported by their local area advisory councilors and forwarded to the District Advisory Council and later, to the Regional Development Ministry. Most of the NGOs submit proposals for small businesses and income-generating projects to sustain their organizations.

12.0 Conclusion

The Charitable Trust Act is the sole legislation, which deals with the various forms of organizations that we have in Fiji. All forms of organizations, which are actively involved in community work currently seek incorporation under the Charitable Trust Act, whether it is a small women’s group which is set up to provide for the under-privileged in its community or a large organisations which established to run educational or religious institutions.

In order to cater for the growing demand and needs of the community, various types of organizations are involved in charitable and voluntary work. All of these organizations are not catered for in the current Charity Act. The Charitable Trust Act is need of review and this basically is due to the fact that there is a need to accommodate notable developments and advancement of the voluntary and the charitable sectors in Fiji. The voluntary organizations in Fiji are a mojor source of social service and they are very active in numerous public life activities including, eradication of poverty, empowerment of women, social care, and health and civic education. There is clearly a need for a modern law, which can unambiguously regulate the different forms and sizes of organizations that exist in Fiji.

The current law which has dealt with the traditional concept of charity has come a long way and the structure and basis of the different organizations, which are now either referred to as Community Based Organizations (CBOs), Civil Society Organizations (CSOs) and Non-Governmental Organizations (NGOs) are not adequately reflected in the Charitable Trust Act.

In light of the CFF saga there also is a need for clear guidelines for the organizations so that those that are involved in advocacy programmes and actively involved in promoting human rights and the freedoms of individuals and groups are protected from the draconian acts of regulators and those in power.

It is about time that the Government reviewed the current law dealing with NGOs in consultation with the various stakeholders and legislated a single modern and progressive law, which will cover all the aspects of the charitable and voluntary organizations, and clarified all the existing legal lacuna’s.

13.0 Laws referred to in the Report

1. Charitable Trusts Act (Cap 67) – Included in Appendix

2. Constitution Amendment Act 1997

3. Electoral Amendment Act 1999

4. Friendly Societies Act (Cap 253)

5. Income Tax Act (Cap 201)

6. Registration of Clubs Act (Cap 194)

7. Religious Bodies Registration Act (Cap 68)

8. Trade Unions Act (Cap 96)

9. Value Added Tax Decree 1991

14.0 Appendix

CHARITABLE TRUSTS

LAWS OF FIJI

CHAPTER 67

ARRANGEMENT OF SECTIONS

PART I-PRELIMINARY

SECTION

1. Short title.

2. Interpretation.

PART II-INCORPORATION OF TRUST BOARDS

3. Incorporation of trust boards.

4. Application for incorporation.

5. Nomination of trustees and filling up vacancies.

6. Certificate of incorporation.

7. Registered office.

8. Powers of the board.

9. Vesting of property.

10. Deeds and contracts.

11. Acts prima facie valid.

12. Board may deal with its property.

13. Cancellation of incorporation of board of trustees.

14. Appeal from decision of Registrar.

15. Action may be taken under Part III.

PART III-EXTENSION OF CHARITABLE TRUSTS

16. Property held for certain charitable purposes may be disposed of for other

charitable purposes.

17. Trustees may prepare a scheme.

18. Scheme to be laid before Attorney-General.

19. Notice of reference to Supreme Court to be gazetted.

20. Judge of the Supreme Court to have jurisdiction.

21. Judge, if satisfied, shall make order, otherwise may refuse.

22. Judge may adopt Attorney-General's report.

23. Order filed.

24. No fee payable.

25. Order of judge to be gazetted.

26. Scheme may be varied or altered.

27. Scheme may provide for payment of expenses.

28. Trustees to transfer property in accordance with scheme.

PART IV-MISCELLANEOUS

29. Inspection of records.

30. Fees.

31. Application of Act.

Short title

1. This Act may be cited as the Charitable Trusts Act.

AN ACT TO PROVIDE FOR THE INCORPORATION OF THE TRUSTEES OF CHARITABLE AND OTHER TRUSTS, FOR THE EXTENSION OF CHARITABLE TRUSTS, AND FOR OTHER PURPOSES CONNECTED THEREWITH

[7th September, 1945]

PART I-PRELIMINARY

Interpretation

2. In this Act, unless the context otherwise requires-

"charitable purpose" includes any of the following purposes, that is to

say:-

(a) the supply of the physical wants of sick, aged, destitute, poor, or

helpless persons, or of the expenses of funerals of poor

persons;

(b) the education (physical, mental, technical, or social) of the

children of the poor or indigent;

(d) the employment and care of discharged criminals;

(e) the provision of religious instruction, either general or

denominational, for the people;

(f) the support of libraries, reading-rooms, lectures, and classes for

the instruction of the people;

(g) the promotion of athletic sports and wholesome recreations and

amusements of the people;

(h) encouragement of skill, industry, and frugality;

(i) rewards for acts of courage and self-sacrifice;

(j) the erection, laying-out, maintenance, or repair of buildings and

places for the furtherance of any of the purposes herein

mentioned;

(k) such other purpose as may be declared by the Minister to be a

charitable purpose;

"Registrar" means the Registrar of Titles;

"trustees" includes executors or administrators, and any person or persons,

body corporate, or association in whom any property is vested for

religious, educational, literary, scientific or charitable purposes.

PART II-INCORPORATION OF TRUST BOARDS

Incorporation of trust boards

3. It shall be lawful for the trustees or trustee for the time being of any charity

for religious, educational, literary, scientific, or charitable purposes, to apply to the

Registrar for a certificate of registration of the trustees of any such charity as a

corporate body; and if the Registrar having regard to the extent, nature and

objects, and other circumstances of the charity, shall consider such incorporation

expedient, he may grant such certificate accordingly, subject to such conditions or

directions as he shall think fit to insert in such certificate relating to the

qualification and number of trustees, their tenure or avoidance of office, the mode

of appointing new trustees, and the custody and use of the common seal; and

thereupon the said society or trustees shall become a body corporate under the

name set forth in the certificate.

Application for incorporation

4. Every application to the Registrar for a certificate under the provisions of

this Act shall be in writing, signed by the person or persons making the same, and

shall contain the several particulars specified in the First Schedule, or such of them

as shall be applicable to the case. The Registrar may require such declaration or

other evidence in verification of the statements and particulars in the application,

and such other particulars, information, and evidence, if any, as he may think

necessary or proper.

Nomination of trustees and filling up vacancies

5. Before a certificate of incorporation is granted, trustees of the charity shall

be effectually appointed to the satisfaction of the Registrar; and, where a certificate

of incorporation has been granted, vacancies in the number of the trustees of such

charity shall from time to time be filled up so far as shall be required by the

constitution or settlement of the charity, or by any such conditions or directions as

aforesaid, by such legal means as would have been available for the appointment of

new trustees of the charity if no certificate of incorporation had been granted, or

otherwise as shall be required by such conditions or directions as aforesaid; and the

appointment of every new trustee shall be certified by or by the direction of the

trustees to the Registrar within one month of such appointment.

Certificate of incorporation

6.-(1) A certificate in the form in the Second Schedule purporting to be

signed by the Registrar shall be conclusive evidence in all courts that the trustees

therein named (hereinafter called the board of trustees) has been duly

incorporated, and of the date of such incorporation. The Registrar shall not issue a

certificate when the name of the proposed board of trustees, in his opinion,

resembles too closely the name of any existing board of trustees.

(2) The original certificate of incorporation shall be kept exhibited in a

conspicuous position at the registered office of the board of trustees.

(Inserted by 15 of 1965, s. 2.)

Registered office

7. Every board of trustees incorporated under the provisions of this Act shall

have a registered office and shall notify the Registrar of the address thereof. It may

from time to time change its registered office by filing in the office of the Registrar

a notice under its seal intimating the change and the new address. Any notice or

legal process shall be deemed to be served upon the board if left at its registered

office.

Powers of the board

8. Every board of trustees incorporated under the provisions of this Act shall

have perpetual succession and a common seal, and may hold real and personal

property of whatsoever nature, sue and be sued in all proceedings civil or criminal,

and do and suffer to be done all that corporate bodies may do and suffer to be

done.

Vesting of property

9. All property, whether real or personal, held by the trustees of any such

trust, shall immediately upon their incorporation be deemed to be vested in the

board of trustees upon and subject to the same trusts, powers, contracts, and

equities as then affect the same.

Deeds and contracts

10. Deeds may be made by any board of trustees under its common seal,

attested by the trustees or any three of the trustees for the time being constituting

the board of trustees; and all other contracts may be made in writing, signed by any

person in the name and on behalf of the board of trustees acting under a resolution

in writing passed at a meeting of the board of trustees.

Acts prima facie valid

11. All acts or deeds done or made by any person acting bona fide as such

trustee shall be valid notwithstanding any defect that may afterwards be found in

his appointment, and the signature of any person purporting to act as such trustee

shall be prima facie evidence of his being such trustee.

Board may deal with its property

12. Any board of trustees (notwithstanding any trusts that may affect its

property) may dedicate all or any of its property for any public purpose or may sell

or exchange the same upon such terms as it deems expedient, and any money or

lands that are received in pursuance of any such sale, exchange, or dedication shall

be held or invested on the same trusts as affect the lands so dealt with.

Cancellation of incorporation of board of trustees

13.-(1) If in the opinion of the Registrar-

(a) the incorporation of a charitable trust was obtained by fraud

misrepresentation or mistake; or

(b) any of the objects of a charitable trust has become unlawful; or

(d) the board of trustees of a charitable trust is not functioning or has

become dissolved; or

(e) the board of trustees of a charitable trust is not, by reason of the state of

its affairs, able properly to exercise its functions or any of them,

he may serve notice in writing upon the board of trustees of such charitable trust, if

the identities of the trustees are known, and, in any event, publish a notice once in

the Gazette and once in a newspaper published and circulating in Fiji, requiring the

trustees to show cause, within thirty days of the date of publication of such notice in

the Gazette, why the incorporation of the board of trustees should not be cancelled

and if within such period of thirty days the trustees fail to satisfy the Registrar that

the incorporation of the board of trustees should not be cancelled the Registrar

may, by notice in the Gazette, cancel such incorporation.

(2) Upon the cancellation of the incorporation of a board of trustees such

board of trustees shall cease to exist as a corporate body but without prejudice to

any liability incurred by such board or its assets whether such liability is incurred

before or after the date of such cancellation.

(3) Upon the cancellation of the incorporation of a board of trustees, any

person who last held the office of trustee shall, within fourteen days of demand

made upon him by the Registrar, transmit to the Registrar, the certificate of

incorporation issued to the board of trustees.

(4) If any person shall fail to comply with the demand of the Registrar given in

accordance with the provisions of subsection (3) he shall be guilty of an offence and

liable to a fine not exceeding fifty dollars. (Inserted by 15 of 1965, s. 3.)

Appeal from decision of Registrar

14. Notwithstanding the cancellation of the incorporation of any board of

trustees under the provisions of section 13 any member of such board may, within

thirty days of the notification of such cancellation in the Gazette, appeal to the

Supreme Court against the decision of the Registrar and the Supreme Court may

confirm or set aside such cancellation or make such other order as in the

circumstances seems just and equitable. (Inserted by 15 of 1965, s. 3.)

Action may be taken under Part III

15. Where the incorporation of a board of trustees has been cancelled under

the provisions of section 13 the Registrar, the board or any trustee or any person

who has contributed to the funds of the trust may, notwithstanding such

cancellation, take action under the provisions of section 17 and thereupon the

provisions of Part III shall mutatis mutandis apply.

(Inserted by 15 of 1965, s. 3.)

PART III-EXTENSION OF CHARITABLE TRUSTS

Property held for certain charitable purposes may be disposed of for other charitable purposes

16. In any case where it becomes impossible or impracticable to carry out the

trusts upon which any property held for particular purposes of a charitable nature is

held, or the amount available proves inadequate to carry out the original charitable

purpose, or such purpose has been already effected, or such purpose is illegal or

uncertain, then the property so held or any part or residue thereof may be disposed

of for some other charitable purpose, or a combination of such purposes, in the

manner and subject to the provisions hereinafter contained.

Trustees may prepare a scheme

17. Where the trustees of any such property are desirous that the same shall be

dealt with subject to the provisions of this Part, they may prepare or cause to be

prepared a scheme for the dispositon of the property in accordance with the

provisions of this Part.

Scheme to be laid before Attorney-General

18. Every scheme prepared under the provisions of this Part shall be

submitted to the Attorney-General, together with full information of all the facts

upon which it is proposed to make such disposition, and with copies of any

instruments necessary to explain the scheme so prepared; and the Attorney-

General shall in respect of every such scheme have the powers and duties

hereinafter mentioned-

(a) he may remit the proposed scheme to the trustees for amendment if he

considers that it will not properly carry out the objects contemplated,

and in so doing shall state in writing the objections which he

entertains to the scheme as proposed;

(b) he may report on the scheme submitted, and such report shall be laid

before a judge of the Supreme Court under the provisions of this

Part, or he may decline to make any such report, and allow the

scheme to be laid before the judge to be dealt with as hereinafter

provided;

scheme, with or without any such report, shall be filed in the office of

the Registrar, and such report and scheme, or the scheme alone if

there is no report, shall be open to inspection by the public without

any fee or charge.

Notice of reference to Supreme Court to be gazetted

19. Notice of the reference to the Supreme Court of any scheme shall be

published once in the Gazette, and twice in each week in one newspaper circulating

in Fiji for three weeks before such scheme shall be considered by the Supreme

Court.

Judge of the Supreme Court to have jurisdiction

20. A judge of the Supreme Court shall have jurisdiction and authority to hear

and determine all matters relating to such scheme, and all proceedings therein shall

be had in a summary manner, and the judge may decide what persons shall be

heard before him in support of or in opposition to the scheme.

Judge, if satisfied, shall make order, otherwise may refuse

21. If the judge is satisfied that a scheme proposed is proper and not contrary

to law, public policy, or good morals, he shall make an order approving of the

scheme, with any modification or variation he thinks fit; but if he is satisfied that

such scheme is not proper or is contrary to law, public policy, or good morals, and

is not capable of amendment, he shall refuse to make any order in respect thereof.

Judge may adopt Attorney-General's report

22. Where the Attorney-General has made a report on a scheme submitted to

him as aforesaid, the judge before whom the same is laid may adopt such report,

and make order thereon accordingly.

Order filed

23. Every order made by a judge under the provisions of this Part shall be filed

with the Registrar.

No fee paydble

24. No fee shall be payable to the Registrar or to the Supreme Court in respect

of any report, scheme, order, inspection, or other proceeding filed or made under

the provisions of this Part.

Order of judge to be gazetted

25. Notice that a judge has made an order in respect of any scheme submitted

as aforesaid, or has refused to make any such order, shall be published in the

Gazette by the Registrar and in the case of a refusal to make any such order, shall

contain a statement of the grounds for such refusal.

Scheme may be varied or altered

26. Every scheme adopted as aforesaid may from time to time be varied or

altered, and the provisions of this Part relating to the adjustment of a scheme shall,

mutatis mutandis, apply to any variation or alteration of such scheme, whether as

originally adjusted or as varied or altered.

Scheme may provide for payment of expenses

27. The trustees may provide in their scheme that all reasonable expenses of

preparing a scheme to be submitted to the Attorney-General for report under the

provisions of this Part, or that may be laid before a judge of the Supreme Court as

aforesaid, shall be paid out of or be a charge on the property affected.

Trustees to transfer property in accordance with scheme

28.-(1) The trustees in whom any property is vested with respect to which a

scheme has been approved by a judge under the provisions of this Act shall convey,

transfer, or pay over the same, with all profits or interest which may have accrued

thereon, to the institution, body, or person designated to hold or receive the same

under such scheme, and upon so doing shall no longer be liable in respect of any

express or implied trust upon which they held such property, except for wilful

negligence or misappropriation thereof.

(2) Such trustees may excute all instruments and do all acts necessary for

giving effect to this section.

PART IV-MISCELLANEOUS

Inspection of records

29. Subject to such conditions as may be imposed by the Registrar and on

payment of the prescribed fee, any member of the public may inspect the records

held by the Registrar under the provisions of this Act for the purpose of

ascertaining whether or not trustees have been registered, the names of the trustees

and the address of the registered office of the trust. (Inserted by 15 of 1965, s. 4.)

Fees

30. There shall be paid to the Registrar, in respect of the several matters'

mentioned in the Third Schedule the several fees therein specified.

(Inserted by 15 of 1965, s. 4.)

Application of Act

31. Nothing in this Act shall affect the operation of the Religious Bodies

Registration Act and the provisions of this Act shall not apply to any religious body

registered under such Act.

(Cap. 6s.)

FIRST SCHEDULE

(Section 4)

We hereby apply to be incorporated under the provisions of the Charitable Trusts Act.

(1) The name of the Board is the

Trust Board (Incorporated).

Society (Incorporated).

(2) The registered office of the Board is at

Society

(3) The names, addresses and description of the Trustees are:-

(a)

(b)

(c)

(d)

(e)

(4) The said Trustees were duly appointed by

(method of appointment) on the day of , 200..

(5) The proposed device of the common seal is

(6) The objects of the charity are

(7) Attached hereto is-

(a) a statement of the property, real and personal, which is possessed by or belonging to or held on behalf of the charity;

(b) a certified copy of the deed of settlement, will, or other document constituting the charity, and any regulations made thereunder.

Dated at this day of , 200..

……………………………………………

Trustee

……………………………………………

Trustee

……………………………………………

Trustee

……………………………………………

Trustee

……………………………………………

Trustee

SECOND SCHEDULE

Second Schedule

(Section 6)

I hereby certify that the Trust Board (Incorporated)

Society (Incorporated)

is duly incorporated under the provisions of the Charitable Trusts Act, subject to

the several conditions and directions endorsed hereon.

Dated at this day of ,200…

Registrar of Titles.

CONDITIONS AND DIRECTIONS

THIRD SCHEDULE

(Section 30)

FEES

Registrar of Titles.

(a) On application for a certificate of registration as a corporate body .......... $2 .00

(b) On grant of a certificate of incorporation as a corporate body $1 .00

(c) On registration of change of registered office ............. $1.00

(d) On inspection of records ............................... 25c

Controlled by Ministry of the Attorney-General

Subsidiary Legislation

CHAPTER 67

CHARITABLE TRUSTS

SECTION 2 - DECLARATION OF CHARITABLE PURPOSE

Notice 30th May, 1950

Declarations by the Governor in Council or by the Minister

The following have been declared to be charitable purposes:

1. The prevention of cruelty to animals and the education and instruction of

the people for the furtherance of that end.

1st November, 1967

2. The furtherance of thrift and the improvement of standards of living by

education and advice in matters of self-help.

15th January, 1970

3. Marriage guidance and counselling, the promotion of education and

research in marriage guidance and the publication and the dissemination of the

results of such promotion.

29th August, 1974

4. The relief of distress caused by any disaster affecting the whole or any part

of the community.

Controlled by the Ministry of the Attorney-General

* LLB, PDLP, Barrister & Solicitor of the High Court of Fiji, Commissioner for Oaths

[1] This term will be used through out this paper and will refer to all forms organizations, as has also been identified in the Country Template to variously cover, charities, nonprofits, not-for-profit organizations, private voluntary organizations, civil society organizations, etc.

[2] Published as Working Paper No. CPNS 12 by the Queensland University of Technology, Centre of Philanthrophy and Nonprofit Studies, August 2002.

[3] Section 2 (1) Constitution (Amendment) Act 1997

[4] Section 30 (1) Constitution (Amendment) Act 1997

[5] Section 31 (1) Constitution (Amendment) Act 1997

[6] Section 32 (1) Constitution (Amendment) Act 1997

[8] Section 30 (2) Constitution (Amendment) Act 1997

[9] Section 31 (2) Constitution (Amendment) Act 1997

[10] Section 32 (2) Constitution (Amendment) Act 1997

[11] Section 44 (1) Constitution (Amendment) Act 1997

[12] Section 44 (3) Constitution (Amendment) Act 1997

[13] Is the equality provision which in subsection (2) provides that “a person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her:

(a) actual or supposed personal characteristics or circumstances, including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability; or

(b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others;

or on any other ground prohibited by this Constitution.

[14] Section 44 (4) Constitution (Amendment) Act 1997

[15] Section 44 (3) Constitution Amendment Act 1997

[16] Copy of the whole Act is attached in the Appendix

[31] Contained in a form in the First Schedule of the Act.

[43] While the Income Tax Act does not define ‘Minister’, the Interpretation Act (Cap 7) defines Minister to mean, one responsible for the administration of the Act or department of the Government, concerned, which in this case is the Minister of Finance

[51] Described in the Second Schedule to the Decree

[59] Republic of Fiji v. Prasad (Court of Appeal, 1^st March 2001)

June 2004

Table of Contents

7.0 Extension of Charitable Trusts

The main law dealing with income tax in Fiji is the Income Tax Act 1974.[42] Over the years this law has been amended over 40 times. The Income Tax Act is divided into 15 parts and has over 110 sections.

9.4 Reliefs to donors