Is RSPCA a constitutional corporation?

The Fair Work Act of 2009 defines several distinct types of businesses as constitutional corporations. (Harris, Hargovan, & Adams, 2013). These are the entities that are incorporated under a state or territory's corporate legislation and can be categorized as either trading corporations or financial corporations. Constitutional corporations also include foreign bodies, bodies incorporated in a territory, and bodies identified as such by the corporate law. A registered welfare charity group is the Royal Society for the Prevention of Cruelty to Animals Queensland (RSPCA). The main activities of the organization are to improve the lives of domestic, farmed, and native animals in Queensland. The organization is a non-governmental community-based regulation with authority to prosecute animal cruelty and neglect. RSPCA is hence not a constitutional corporation because it has not been incorporated. Instead, the organization has been registered with the charitable organizations in Queensland. Additionally, its core business is not involved in either trading or financial corporation.

The new legislation was passed as a statute by the parliament of Australia. The Australian parliament is spent much time making laws. These laws are known as parliamentary statutes or Acts. Any statute passed by parliament becomes law and must be enacted by the necessary authorities. The Animal Well-being Act of Australia was passed by the parliament. Therefore, it is a law that will affect all the constitutional corporations. The new legislation, therefore, does not apply to RSPCA or any other organization that is not a trading, financial or foreign organization. Since RSPCA is an organization aimed at preventing cruelty to animals, it is one of the organizations that are expected to embrace the law as the law is meant to protect the animals. However, the RSPCA will not be affected by the statute.


For an organization to be an institutional corporation, it must be incorporated under the law of the state or the territory and can be categorized as either trading or financial corporation. Secondly, such institutions can be foreign bodies operating in the country or bodies incorporated in a territory. Furthermore, they can be bodies described as ones which corporate under the legislation (Rasnic, 2013). Organizations incorporated under the state legislation are a corporation. However, they are classified as constitutional corporations depending on whether they can be classified as financial or trading. The trading or the financial activities of the organization have to be significant for it to be classified as either financial or trading organization. In the case of RSPCA, it is not involved in any financial or trading activity; hence the organization cannot be classified as a constitutional corporation. Among the groups not classified as constitutional corporations there are partnerships, sole traders, local government and unincorporated associations. Since The Royal Society for the Prevention of Cruelty to Animals in Australia is an unincorporated corporation, it cannot be classified as a constitutional corporation.

In determining whether an organization is a trading or financial corporation, its current activities and not the purpose of its formation are determined. According to the new act passed by parliament, no trading, financial or foreign corporations within Australia shall conduct euthanasia unless two veterinaries agree that the animal is in the imminent likelihood of death and suffering from extreme pain. Since RSPCA is not a trading, financial or foreign corporation, the rule does not apply to the organization.

Euthanasia is a process of inducing a painless death on animals. It is the humane killing of an animal that aims at alleviating pain and distress (Ebrahimi, 2012). Euthanasia is different from the necessary killing of an animal for other reasons such as when the animals are in surplus. Euthanasia is only used when the animal is in pain, distress or suffering which is above the manageable levels. It can also be used when the welfare of the animal is irredeemably compromised such as due to drought or other natural disasters. Humane killings can also be done for other reasons such as for research at the end of studies. Killing may occur for the students to do experiments as well as collect more data. Additionally, it is used in research to provide tissues for scientific purposes, when the animal is no longer required for breeding, in control of vertebrate pests and for the slaughter of stock abattoirs. The euthanasia conducted by the zoo was because the zoo was in surplus of the Koko breed. Initially, the law did not restrict such organizations from euthanasia. Furthermore, public dissection of animals for purposes of learning was always done in Denmark. In its defense, the zoo can state that it was legally allowed to perform the euthanasia since it was done for learning purposes. After the passing of the law, any foreign, trading or financial organization will be restricted from conducting euthanasia. For such organizations to conduct euthanasia, they must first get the consent of two veterinaries who will agree that the animal in question is in the imminent likelihood of death and suffering from unbearable pain. The zoo can be classified as a trading organization since its main activity is a trading activity.

The RSPCA together with other animal welfare organizations is concerned about the new law. The new act is looking at the welfare of the animals. Australia is ranked among the top most countries with the highest number of pet ownership in the world. About 60% of the Australian households own a pet with 40% of them owning a dog and 29% a cat. Pets in Australia are considered parts of the families, and hence taking great care of the pets is paramount. Cats’ and dogs’ euthanasia, for instance, is unacceptable in Australia.

Though the new act has been enforced to help the animals, the RSPCA and other animal welfare groups feel that the requirement of two veterinaries will increase the expenses. Every organization looks at reducing expenses, and especially the trading organizations which aim at reducing expenses to maximize their returns. As such, the organizations feel the requirement of two veterinaries will increase their expenses, thus reduce their returns. However, though the requirement will increase the expenses, it will be a good way of ensuring that the only animals euthanized are those whose survival is threatened by massive pain and suffering. The opinion of two veterinaries is crucial as it increases the level of efficiency. The organizations are also concerned about the animals which are in great pain due to accidents or chronic diseases. The new act did not include such animals, and hence the concern is genuine.

The Kim Cowie 2016 FWC 7886 was a Fair Work Commission which was decided by determining whether the organization was a constitutional corporation or not. In the case, the stop bullying provisions of the Fair Work Act 2009 did not apply because Rowing Victoria Inc. was not a constitutional corporation. During the decision making, a constitutional corporation was defined as one in which S51(xx) of the Australian Constitution applies (Dominique, 2016). Therefore, an incorporated corporation is one which can be defined as a trading corporation. Consequently, it was argued that trading corporations are the ones who provide some form of goods or services in exchange for money. Hence, every company performing business activities is considered a trading corporation. In cases of not-for-profit-making organizations, it is not clear what is and what is not a not-for-profit making organization. The fact that such an organization does not undertake a profit-making activity is not enough to rule out such an organization as not a trading corporation. Instead, it is evaluated to determine whether the trading or the sales activity part of the organization forms a substantial part of the activities of the organization. Additionally, it looks at the degree to which the purposes of the organization are commercial or are performed with the aim of making a profit.

For instance, in the case of W v Australian Red Cross society 1991 FCA 603, the Red Cross Society was found not to be a trading corporation. The decision was made because most of its income came from conducting service of supplying blood and making donations with only a small minority of the organization’s income comes from trading based activities (Dominique, 2016). In the same case, the Royal Prince Alfred Hospital was found to be a trading corporation because it made about $18 million per year from trading activities which were found to be substantial.

The Rowing Victoria Inc. was not a trading corporation though it was performing trading activities such as collection of entrance fees and coaching fees. The business activities were not substantial to make it a trading corporation. Additionally, the organization’s primary activities were volunteer based. Arguing the RSPCA organization case using the decision made by the Rowing Victoria case, it can be said that the RSPCA is not a trading corporation. As a result of the decision made that Rowing Victoria Inc. was not a trading corporation and hence not a constitutional Corporation, the Cowie’s stop bullying application was struck out of the Fair Work Commission due to lack of jurisdiction to listen to the case and make a ruling (Cudmore, 2016).

In a similar case, the question on what is a constitutional corporation, the University of Wollongong was held to satisfy the definition of a constitutional corporation. In determining whether an organization is a constitutional corporation, the case looked at the definition of a constitutional corporation. The act defines the Constitutional Corporation as a foreign corporation within the meaning of paragraph 51(xx) of the constitution. It is also a body corporate that is founded for the purpose of paragraph 51(xx) of the constitution or a financial company founded within the restrictions of the commonwealth. A constitutional corporation is also a corporate body that is incorporated within a Commonwealth authority. In deciding whether Wollongong University is a constitutional corporation, it was decided that since the act establishing the university granted it corporate body status; it was not enough to make it a corporate institution. Additionally, the university did not fit the definition of a corporate constitution in that it cannot be defined as a constitutional corporation under paragraph 51(xx) neither is it made for the purpose of paragraph 51(xx). The question, therefore, is to determine if the university is a trading corporation. The decision on whether it is a trading corporation was determined by relying upon the case of R v Federal Court of Australia, the Ex parte W. A. National Football League Inc. 1979. The critical topic in the case was evaluating whether the activities of the university were substantial for the university to be regarded as a trading corporation hence, a constitutional corporation. The organization’s main activity is the provision of education which is not a notion of a trade. Most of the organizations regarded as trading corporations supply services rather than goods. The University provides education services for reward hence trading profitably. Hence, the university is involved in the trade. The next step was determining whether that trade is substantial to be a significant proportion of the university’s overall activity. It was found that the university received a total of $32 million from trading activities in 1996, hence qualifying as a trading corporation. The university was hence ruled to be a trading corporation hence a constitutional corporation.

The Royal Society for the Prevention of Cruelty to Animals in Australia was established in 1981 to promote animal welfare (RSPCA, 2017). Each state in Australia has an RSPCA organization that is associated with RSPCA Australia. The main funder of the organization is the Australian government although the organization still receives other funding from corporate sponsorship, fundraising events and voluntary donations from its income. In many instances, the organization has been described as a federal organization made up of eight independent state and territory RSPCA societies (Alberthsen et al., 2013). The main purpose of the organization is to be a leading expert in animal care and protection as well as prevention of brutality to animals by encouraging animal care and protection.

Therefore, according to the Corporation Constitution Act, RSPCA is not a corporate constitution. RSPCA cannot be defined as a corporate constitution because it does not provide any form of goods and services. The organization’s main sources of income are government grants and donations from private institutions and governments. RSPCA does not conduct any form of commercial activity where goods or services are exchanged for a reward. Hence, the RSPCA can be referred to as a not-for-profit organization as it aims at looking after the welfare of animals rather than making a profit. Being a not-for-profit organization, it does not undertake a profit-making activity hence there is no substantial part of a profit-making in the organization hence it cannot be termed as a trading organization.


According to the previously decided cases, the RSPCA is not a constitutional corporation. Based on the W v Australian Red Cross Society 1991 FCA 603, RSPCA can also be said not to be a corporate constitution. Similar to the Red Cross organization in the case, RSPCA does not conduct any form of commercial activity. Its main activity is looking at the welfare of animals, and its main source of income is government grants and public donations. In the Red Cross organization, only a small portion of the organization’s income came from trading activities hence it’s not a corporate institution. In another case presented to the fair work commission, it was decided that the commission did not have the jurisdiction to hear or rule on the case because Rowing Victoria Inc. is not a corporate constitution. It was decided that Rowing was not a corporate constitution because although the company charged some entrance fee, making it a trading corporation, the fees collected were not substantial hence the organization is not a corporate constitution. Additionally, in Rowing Victoria Inc. the primary activities were volunteer-based just like in RSPCA.

In another case on Wollongong University, it was held that the university was a constitutional corporation. The decision was made because though the main purpose of the organization was providing learning services, it was performed for a reward (“Workplace Info,” 1997). Therefore, since the income from the provision of learning services was substantial, the University was said to be a corporate constitution. Based on the same argument, the RSPCA cannot be said to be corporate constitution because the largest part of the company’s income does not come from trading. Hence, it is right to conclude that RSPAC is not a corporate constitution because it does not fall under the category of a trading corporation, foreign corporation or a financial corporation. Therefore, since the new act is only for financial, foreign and trading constitutions, it does not apply to RSPCA


According to the discussion above, RSPCA is not a corporate constitution. Therefore, the new registration will not apply to RSPCA. Euthanasia is the compassionate killing of animals in the imminent likelihood of death and suffering from extreme pain. Euthanasia is conducted in order to relive these animals from the pain and suffering. RSCPA being a non-governmental organization whose main aim is to protect the welfare of animals should be in support of the new law. The law was enacted because of what happened at the zoo. Assuming that the zoo charges a fee for entrance and other services, it can be assumed to be a trading corporation. Therefore, the zoo will be affected by the new registration. The zoo performed euthanasia because there was a surplus of Koko and also for learning purposes as at the time killing animals for learning purposes was not prohibited in Queensland. RSPCA being an animal welfare organization should embrace the new law as it is aimed at reducing the rate of euthanasia. However, the organization should call upon other animal welfare organizations to embrace the law and to urge the parliament to make some changes in the law. Other animal welfare organizations are concerned about the expenses that will occur due to the need of two veterinaries in authorizing the need for euthanasia. Though the requirement is aimed at ensuring that whenever euthanasia is performed, it is the right action, the requirement will make the process expensive. However, the animal welfare organizations should embrace the law and take up the additional expenses as a way of helping reduce animal euthanasia.

In support of the new law and in protecting the welfare of the organization, RSPCA should state its support to the new law and thank the parliament for taking a step towards protecting the animals. However, RSPCA should state that there is more that is required in protecting the animals. For instance, they should ask the parliament to make reforms on the law so that the new law will not only apply to financial, foreign and trading corporations, but also to other organizations dealing with animal welfare such as non-governmental organizations like RSPCA. Additionally, RSPCA should ask the parliament to include in the statute, protection of animals in great pain caused by chronic diseases but not in the imminent likelihood of death. In the animal well-being act passed by the parliament, only animals whose imminent likelihood of death should be euthanized. The Act excluded animals who are suffering from chronic diseases but which are not in the imminent likelihood of death. As most animal welfare organizations are more concerned on the well-being of the animals, they should push towards relieving the pain of animals suffering from chronic diseases. Based on the specifications of the Act passed by the parliament, if an animal is not in the imminent likelihood of death, it should not face euthanasia. The Act, therefore, neglects all animals which are suffering from chronic diseases most of which have no cure. RSPCA should hence work towards persuading parliament to make reforms in the Animal Well-being Act so that even animals which are suffering from chronic diseases but are not in the imminent likelihood of death to be offered euthanasia.


Alberthsen, C., Rand, J.S., Bennett, P.C., Paterson, M., Lawrie, M., & Morton, J.M. (2013). Cat admissions to RSPCA shelters in Queensland, Australia: Description of cats and risk factors for euthanasia after entry. Australian Veterinary Journal, 91(1-2), 35-42.

Cudmore, Dominic. (2016, December 12). Is your workplace a constitutional corporation? JFM Law. Retrieved from

Ebrahimi, N. (2012). The ethics of euthanasia. Aust Med Stud J., 3, 73-5.

Harris, J., Hargovan, A., & Adams, M.A. (2013). Australian corporate law (Vol. 2).

London, UK: LexisNexis Butterworths.

Rasnic, C.D. (2016). The Constitution of the Commonwealth of Australia. International Journal of Constitutional Law, 14(4), 1038-1043.

RSPCA. (2017). Constitution | RSPCA Queensland. Retrieved from

Workplace Info. (1997). What is a ‘constitutional corporation’? Retrieved from

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