7 November 2013 Australian Charities and Not-for-profits Commissioner GPO Box 5108 MELBOURNE VIC 3001

Copies to: Commissioner of Taxation Australian Taxation Office GPO Box 9990 MELBOURNE VIC 3000 Tax Evasion Australian Taxation Office Locked Bag 6050 DANDENONG VIC 3175

Dear Commissioner, Complaint re Charity Registration & Deductible Gift Recipient status of trustee for The Waubra Foundation Ltd I write to you today to register my concern that the trustee for The Waubra Foundation Ltd (ABN 658 0114 7788) (WF) does not meet, or no longer meets, the requirements to be registered as a charity in accordance with the Australian Charities and Not-for-profit Commission Act 2012 (Cth) (the new Act), and to request that the Commissioner investigate the matter with a view to revocation under Section 35-10 of the new Act. Due to my concern regarding the charity status of WF, I am similarly concerned that WF should not be receiving income tax deductible gifts pursuant to the Income Tax Assessment Act (1997) (Cth), and requests that the Australian Taxation Office assist in the investigation of this matter. I understand that WF’s charity registration and corresponding Deductible Gift Recipient (DGR) status is as a “health promotion charity”. Section 25-5(5), Item 5 of the new Act provides an entitlement to registration as a charity for an “institution whose principal activity is to promote the prevention or the control of diseases in human beings”, including an entity commonly known as a health promotion charity. I note that the new Act does not define disease.

Section 34.20 of the Income Tax Assessment Act (1997) (Cth) defines disease as including “any mental or physical ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin.” Prior to the commencement of the new Act this was the relevant definition for disease associated with the classification of a deductible gift recipient as a health promotion charity. I believe that WF does not promote the prevention or the control of diseases in human beings as required by the new Act. Instead, I am concerned that WF lobbies against wind energy and wind development by publishing inaccurate claims about alleged health conditions related to so-called “Wind Turbine Syndrome” (WTS), found to be entirely without scientific or medical basis by numerous reputable, independent and qualified bodies. WTS is not and never has been recognised as an illness, disease, ailment, disorder, defect or morbid condition in any country. I enclose report and annexures detailing these matters further. The rules associated with WF’s DGR status (Annexure 1 to the enclosed report) include the following key objectives relevant to classification as a “health promotion charity”: (a) Gather, investigate and review complaints of health problems that have been perceived by the complainants as being associated with living or working close to wind turbines or such other industrial sources that may be considered as relevant; Promote research into the effects and causes of illnesses that may be associated with living or working close to wind turbines and other relevant sources; Facilitate the establishment of individual networks of relevant specialties of medical practitioners and other health practitioners to enable the rapid sharing of information an expertise in the diagnosis, management and treatment of patients with symptoms of wind turbine syndrome.

(f)

(h)

Use of the terms “perceived by the complainants as being associated with” and “may be associated with” is consistent with the medical consensus (as detailed in the enclosed report) that there is no established or accepted link between the health complaints subject of WF’s investigations and wind energy. Should the Commissioner find that “wind turbine syndrome” is considered a disease for the purposes of the new Act, I am nevertheless concerned that WF may have applied, and continues to apply, deductible gift funds to purposes outside WF’s objects and/or unrelated to the permitted activities of a health promotion charity. Such activities may include anti-wind development litigation and circulation of general anti-wind energy materials unrelated to health, as detailed in the enclosed report and annexures to it. I am also concerned that WF’s activities may be influenced by some of its directors’ personal interests, rather than genuine pursuit of WF’s objects, including those permissible for a health promotion charity. One of WF’s directors is also a director of oil, gas and uranium companies, competitors of wind energy, and WF has until recently shared a registered office with one such company. Some of WF’s director/s are active members and/or office holders of other anti-wind organisations, and are also property owners

adjacent to or in the vicinity of proposed wind developments who appear concerned with landscape change or other property amenity issues unrelated to health. These matters are detailed further in the enclosed report and annexures. WF’s constitution includes an object to “at all times maintain complete independence from government, industry and advocacy groups for or against wind turbines”, presumably included to maintain the organisation’s “health promotion” status and limit the potential for WF to be put to the ulterior purpose of anti-wind energy campaigning. The appointment of directors who are also directors of oil, gas and uranium companies, and who oppose local developments may be in clear breach of this object. Sharing an office, officers and administrative resources with a company heavily invested in competing energy sources, as WF has done for most of its existence, may also be in breach of this object. If the multiple breaches of this object are upheld, this further support the conclusion that WF, and donations to its gift fund, may be being put to some of its directors’ personal interests rather than toward genuine health promotion activities as required by WF’s purposes, charity registration under the new Act and corresponding tax status. I am concerned that WF is not engaged in the prevention or control of any disease, that it is using DGR funds for non-permissible activities, and that it may be carrying out activities in some of its directors’ personal interests rather than for genuine health promotion purposes, in breach of the new Act, the Income Tax Assessment Act (1997) (Cth), as well as its own constitution. As such, it is my contention that WF should not be registered as a charity nor hold DGR status. I note that Section 45-5 of the new Act provides that an object of the new Act is to “give the public confidence that registered entities use their resources effectively and efficiently [and] promote their purposes”. I note that in accordance with Section 35-10 of the New Act, in deciding whether to revoke the registration of WF, the Commissioner must take into account, among other things; (a) (b) the desirability of ensuring that contributions to WF are applied consistently with its purpose and status as a health promotion charity; and the extent to which it is conducting its affairs in a way that may cause harm to, or jeopardise, the public trust and confidence in the not-for-profit sector.

As a registered entity, WF’s potential use of deductible gifts to: (a) pursue unqualified, medically and scientifically flawed investigations into WTS following repeat reputable findings from the medical profession that it is not a disease; (b) lobby against wind energy development; (c) fund anti-wind development litigation; (d) pursue activities outside its purposes and in some of its directors’ personal interests, comprises a conduct of affairs likely to cause serious harm to the public’s trust and confidence in the notfor-profit sector, and is contrary to the new Act.

Please contact my office should you have any queries. I otherwise thank you for your assistance and look forward to your initial response in respect to this request for investigation within 14 days of the date of this letter. Yours sincerely,

Richard Di Natale