On the 3rd of January this year, comedian Celeste Barber started a fundraiser on Facebook. Underneath a picture of a burning house was the title “Please help anyway you can. This is terrifying.” And the subtitle that this was a “Fundraiser for The Trustee for NSW Rural Fire Service & Brigades Donations Fund”; or, as it has come to be known for short, the RFS Trust.
After the appeal raised over $30 million (a far greater sum than was originally intended), Ms Barber stated that she would direct those funds to others in need, such as bushfire victims and wildlife. In the end, over $51 million was raised. We know that some people believed Ms Barber as to what could be done with the funds. However, we also know that many people did not; and that they explained to Ms Barber, and to others on the fundraiser’s Facebook page, that despite her wishes the terms of the RFS Trust simply did not allow the funds to be spent on anything other than the RFS Brigades.
The problem this has raised in the months since is, should the money remain subject to the terms of the RFS Trust, and only be spent on supporting the RFS brigades; or should it be available to support bushfire victims and wildlife more broadly? Greens MLC David Shoebridge’s answer, as represented in Rural Fires Amendment (NSW RFS and Brigades Donations Fund) Bill 2020, is in favour of bushfire victims and wildlife. My view, on the other hand, is the money remaining subject to the terms of the RFS Trust. But, before you call me heartless, allow me to explain why.
When you donate to a charity, presumably that charity is where you want your money to go. I would also presume that you would not like anyone simply taking your donation away and giving it to someone else. But, if you donated to the RFS Trust, and meant to, then this is what Mr Shoebridge’s legislation will do. You may not mind this, but how do you know that other people will not? For example, imagine you saw a fundraiser that had a picture of an ambulance, and the title that this was “a fundraiser for the NSW Ambulance service”. If you donated to this cause, where would you think your money was going: to the patients of the service, or to the paramedics? Common sense tells you that it would be to the paramedics.
If you were a visitor to Celeste Barber’s Facebook fundraiser page, and saw the picture of the burning house and that this was a fundraiser for the RFS Trust, where do you think your money would go: to the RFS brigades, or to bushfire victims and wildlife?
In reality, most people did not go on social media to proclaim what they thought they were donating to; so the only thing we can say for certain that they knew when making a donation was that it would go to the RFS brigades. Indeed, the proposed legislation is drafted in such a way that it will include moneys donated to the RFS Trust from over two months before Celeste Barber began her fundraiser. Is it okay for people who donated money back then to have their donations repurposed; especially when, despite the large sum of money involved, we know that the RFS Brigades could use every single cent of it?
Even if you were to disagree, and say that the unprecedented amount of money raised merits a public repurposing, does the proposed legislation actually help anyone in need now? The answer is no. This is because the legislation will not actually make the RFS Trust spend any of its money on bushfire victims or wildlife: the legislation simply gives the RFS Trust the ability, or freedom, to do so.
Further, even if the RFS Trust were do decide to do so, it has no expertise in spending moneys on bushfire victims or wildlife; so the most likely course would be for it to donate those funds to charities like the Red Cross… a charity that, as of June, had still not spent $111 million of the $216 million that it had raised for bushfire relief. Indeed, an issue not considered by the legislation is that it will possibly destroy the RFS Trust’s tax-deductible status, which will significantly affect its ability to raise funds in the future.
A solution to this, proposed by Mr Shoebridge, is to ask the Commonwealth Parliament to pass legislation that will create an exception for the RFS Trust, and making his legislation subject to it. But that could take months at least, by which time bushfire survivors will have already suffered through winter; something that has been explicitly identified as being the motivation behind the legislation.
As such, even if you agree with the idea of taking money away from charitable purposes that other people have willingly donated to, the way that this proposed legislation goes about it will not achieve the goals that it seeks to, or help anyone that needs it now. The legislation will, therefore, be little more than a virtue signal: something that represents our good intentions towards those that have survived the bushfires, but doing little, if anything, to actually help them.
Dr Derwent Coshott is a lecturer at Sydney Law School in the areas of equity, property and contract, with a primary interest in the area of trusts.