Legal experts believe the NSW Supreme Court may need to intervene to enable more than $50 million in donations to be distributed to bushfire victims and first responders.
Last month, Australian comedian Celeste Barber raised a staggering $51.2 million for the Trustee for NSW Rural Fire Service & Brigades Donations Fund, with the final total smashing the comparatively modest early target of $30,000.
But not a single dollar has actually made its way to those doing it tough because the RFS trust deed prevents donations being spent on purposes other than firefighting equipment and facilities, training and some administrative costs of the brigades.
Lawyers for Celeste Barber are in talks with RFS representatives about ways to unlock the funds.
Celeste Barber, wearing a parody shirt mocking Prime Minister Scott Morrison, addresses the crowd at the Fire Fight Australia charity concert in Sydney. Source: AAP
"We have our lawyers working with Celeste's lawyers to find a way this can be done," RFS spokesman James Morris told AAP.
Show me the money
However, legal experts warn it will not be an easy process.
Seak-King Huang is a partner at Prolegis Lawyers, a firm specialising in the charity, not-for-profit and philanthropy sector.
Ms Huang said it's an unusual case as the RFS is a state body but the funds are governed by its own trust deed meaning the NSW Parliament can't resolve the matter.
"That trust deed, while it is a publicly available document, it is not a legislation of any parliament. It is not something the NSW Parliament can try to amend," she told SBS News.
But she said the NSW attorney-general may have a role, adding that lawyers were likely exploring the possibility of obtaining special permission from the Supreme Court to reapply the funds.
A NSW Rural Fire Service member monitors conditions as Australian Army personnel clear fallen trees near Cobargo. Source: Australian Department of Defence
The court can grant what's called a cy-près order, which acknowledges that where a charitable trust's purposes are impossible or cannot be fulfilled, the funds should be reapplied to initiatives in line with the original goal.
But in Ms Huang's view this is not a cy-près situation.
Another option would be to vary the trust deed to allow the RFS to reallocate funds, but Ms Huang said that is very rare.
"The amendment clause (for this deed) would be quite narrow and you'd probably find there is a bar against any amendment that will actually change the charitable purpose," she told SBS News.
"That again is a very important device in trust deeds. You wouldn't want people to set up a charitable trust one day and find that 10 years down the track the trustees are busily amending and changing the purpose of that charitable trust."
A third solution would involve more drastic action to free up the pot of donations.
"Some people have suggested a more radical solution which is for the trustees to wind up these secure funds and reconstitute the funds. In the course of the winding-up, they could disperse these assets to similar organisations," Ms Huang said.
"That would be quite a radical solution and we wouldn't want any trustees confronted with the same situation to think they can just simply resort to an option like that."
A timely warning
While legal minds discuss the best way of unlocking the funds, Ms Huang said there are simple precautions people can take in the future to ensure their money is going exactly where they intended.
"(A fundraiser should) always make sure they familiarise themselves really well with the charity they want to benefit. Have a look at the trust deed or in lots of other cases, the constitution, have a look at the website," she told SBS News.
"All of these are readily available for people to look at, but of course, we had such urgency and Celeste Barber just wanted to get her fundraising going very quickly and people responded very quickly."
Celeste Barber addresses the crowd during the Fire Fight Australia bushfire relief concert at ANZ Stadium, Sydney. Source: AAP
She also has this advice for those opening their wallets to support a cause.
"Donors do need to, quite aside from the usual precautions, get to know the charity. They too can go on the charity website and look up the trust deed or constitution of the charity they want their funds to go to," Ms Huang said.
She said the unusual situation was not the fault of the RFS trust.
"It's a very modern trust deed, its purposes are very clearly written."
A representative for Celeste Barber said the comedian would not be discussing the matter at this time. SBS News has also contacted the NSW Rural Fire Service for comment.
