The charity commission of England and Wales as a model: could Hong Kong and Australia be importing a constitutional problem?

The Charity Commission of England and Wales is granted powers under the Charities Act 2011 of decision-making about charitable status and public benefit of entities which were formerly the province of the judiciary. Considering that the incursion of government into charity law has become such a controversial issue, it is remarkable that the intermingling of administrative and judicial power in the Charities Act 2011 has received so little attention. This article explores the constitutional challenges faced by charity law in the UK and reveals what lessons may be learned by Australia and Hong Kong as each jurisdiction prepares to introduce a charity commission. In particular, the article contends that complications concerning the operation of the doctrine of separation of powers remain unresolved in England and Wales and that both Australia and Hong Kong need to give the judiciary a formidable role in adjudication of charitable status, so that the charity commission of each jurisdiction, although an arm of the executive, can be checked in crucial cases.