RD Nicholson J

Lehane J
Goldberg J

Full Federal Court


Judgment date: 22 August 2000

RD Nicholson, Lehane and Goldberg JJ

The issue in this appeal is whether the primary judge was in error of law in dismissing an application for a declaration that, as at 30 June 1999, the appellant was a ``public benevolent institution'' within the meaning and for the purpose of s 57A(1) of the Fringe Benefits Tax Assessment Act 1986 (Cth) (``the FBTA Act'') [reported at 2000 ATC 4191]. The application had also sought a declaration that benefits provided in respect of the employment of employees of the

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appellant are exempt benefits pursuant to the same section.

Findings of primary judge

2. The appellant is a corporation established under the Mines Rescue Act 1994 (NSW) (``the MRA'') and a statutory body representing the Crown in right of New South Wales: MRA s 5(2).

3. There are seven directors of the appellant appointed by the Governor on the recommendation of the Minister. Three of the directors are persons nominated to represent the interests of mine owners; a further three are persons nominated to represent the interests of mine employees; one is required to be a person nominated by the Minister: MRA s 10. The Minister may remove a director from office at any time: MRA s 10(5); sch 1, cl 5(2). The Chief Executive Officer of the appellant is appointed by the Governor who may, at any time, remove a person from the office of Chief Executive but only after consultation with the Board: s 12(1); (3) and sch 2, cl 1(5).

4. The appellant's functions are of two types. Firstly there are principal functions, summarised as the provision of rescue services for underground coal mines in New South Wales: MRA s 6. Secondly, it has discretionary functions summarised as the provision of rescue services for other mines and the provision of non-rescue services for mines and industry both in New South Wales and elsewhere: ss 7 and 8.

5. On the issue of Ministerial control of the appellant, the Minister may give written directions to the directors concerning the exercise of the appellant's functions with which the directors must comply subject to following a review procedure: MRA s 14. The appellant is under an obligation to provide the Minister with information concerning its activities and to keep the Minister informed of the general conduct of its activities: MRA s 15.

6. Additionally, the appellant is required to prepare and deliver to the Minister a draft corporate plan for the financial year: MRA s 16(1). There is an obligation on the appellant to consider any comments on the draft by the Minister and to deliver the completed plan to the Minister before the beginning of the financial year concerned: MRA s 16(2). The appellant is obligated to exercise its functions in accordance with the corporate plan: MRA s 16(3). Reference to the MRA shows that those obligations are subject to any requirement made by, or under the Act, including the requirements of a direction by the Minister under s 14: MRA s 16(5).

7. The appellant's activities are funded from the Mines Rescue Fund (``the Fund'') established and governed by the MRA under the control and administration of the appellant. Owners of coal mines are required to make contributions to the Fund, as prescribed by regulations, towards the appellant's expenses in carrying out its principal functions: MRA s 31. Before a regulation is made fixing the contribution required by owners of coal mines, the Minister must certify that the amount to be prescribed for a particular coal mine is appropriate having regard to the matters listed in MRA s 31(2). The appellant may charge fees for exercising any of its discretionary functions which are payable into the Fund. Also payable into the Fund is any money appropriated by Parliament for the purposes of the appellant: MRA s 29(c). The appellant does not obtain and has not obtained any funds from government.

8. The Mines Rescue Brigade is established pursuant to s 37 of the MRA. This comprises persons who are employees of the owners of underground coal mines in New South Wales who, whilst acting as a member of the Brigade, are regarded as being employed by the appellant: MRA s 59(2). While they are engaged in mine rescue work or training for that work they are entitled to be paid such fees and allowances as the appellant, with the concurrence of the Minister, determines. The function of the Brigade is to provide, under the control and direction of the appellant, a mine rescue service for responding to, and dealing with, emergencies arising at underground coal mines in New South Wales, and at other mines. The Minister has the power to determine an appeal against a determination of the appellant with respect to the number of employees required to be made available to serve as members of the Brigade and as to the equipment and facilities to be made available by the owner for use by the Brigade: MRA ss 40 and 41.

9. After the MRA has been in force for five years, the Minister is obliged to undertake a review of it to ascertain whether the policy objectives remain and whether the terms of it remain appropriate for securing those objectives: MRA s 51.

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10. The appellant operates a mines rescue facility in the each of the four coal mining regions in New South Wales and has a mines rescue station located there. As the principal function is to provide an emergency service, its staff must be ready to respond at short notice. However, there is a fair degree of time during which staff can be on call and can also perform the discretionary functions of the appellant. In exercise of those functions from time to time the appellant provides rescue services and facilities in mines other than underground coal mines. It also provides training in safety and emergency response to owners of mines and to organisations in other industries.

11. The reasons of the primary judge also traced the genesis of the appellant. He found the appellant be a continuation of, and the same legal entity as, the Mines Rescue Board constituted by the Mines Rescue Act 1925 (NSW) which was repealed by the MRA: see cl 3 of sch 3 of the MRA.

Legislative context

12. Section 57A of the FBTA Act provided (at the relevant time) as follows:

``(1) Where the employer of an employee is a public benevolent institution, a benefit provided in respect of the employment of the employee is an exempt benefit.

(2) Where:

  • (a) the employer of an employee is a government body; and
  • (b) the duties of the employment of the employee are exclusively performed in, or in connection with, public hospital that is a public institution;

a benefit provided in respect of the employment of the employee is an exempt benefit.''

The expression ``public benevolent institution'' is not defined in the FBTA Act. The meaning of the term has been considered in a number of decisions. The primary judge said that the authorities in this area have been reviewed by Full Courts in
Metropolitan Fire Brigade Board v FC of Taxation 90 ATC 4052; (1990) 27 FCR 279 (the ``Fire Brigades case'');
FC of T v Royal Society for the Prevention of Cruelty to Animals, Queensland Inc 92 ATC 4441 and
Commr of Pay-roll Tax (Vic) v The Cairnmillar Institute 92 ATC 4307; [1992] 2 VR 706. He accepted that while it is acknowledged that the relief of financial hardship is not an essential characteristic of a public benevolent institution, a body will not qualify as such unless it promotes the relief of one or other of poverty, suffering, distress or misfortune. The case for the appellant is that the appellant promotes the relief of suffering, distress or misfortune.

13. The provisions of s 57A(2)(b) were relied upon in the Fire Brigades case at ATC 4055; FCR 282 where the Full Court (Wilcox, Spender and Pincus JJ) said:

``The connection of a body with government may, in some circumstances, assist towards a conclusion that it is a public benevolent institution. But we think a purely governmental body is hardly ever likely to satisfy the tests which the authorities contain. Section 57A(2) of the Fringe Benefit Tax Assessment Act itself suggests this. That subsection exempts benefits provided to employees whose duties of employment are exclusively performed in, or in connection with, `a public hospital that is a public benevolent institution', where the employer is a government body. The language chosen by the legislature clearly contemplates that some of these institutions (whose purpose is to alleviate people's suffering) may not be public benevolent institutions. Further, the terms of the subsection are consistent with the view that government bodies are ordinarily not thought of as public benevolent institutions.''

The appellant's case accepts that the Fire Brigades Board was found by the Court to have been a ``purely government body''. For the appellant it is contended that the Full Court did not have before it the explanatory memorandum upon the introduction of s 57A(2). This is said to support the view that the reference is there to a public hospital and is intended only to apply to third party arrangements and so not to support the inference drawn from it by the Full Court.

14. The words ``government body'' are defined by s 136(1) of the FBTA Act to mean the Commonwealth, a state or territory, or an authority of the Commonwealth, or of a state or territory.

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Reasons of primary judge

15. The primary judge commenced by rejecting a submission on behalf of the respondent that the appellant itself was not engaged in the conduct of rescues because these were carried out by Brigade members. He found the Brigade members, when acting as such, were part time employees of the appellant and part of its organisation. He further found the appellant's activities in discharge of its principal function involved the relief of suffering, distress or misfortune.

16. On the principal issue his Honour said [at 4196-4197]:

``Furthermore, as Thomas J explained in RSPCA, the authorities have basically confined the concept of `public benevolent institution' to institutions whose primary activities are eleemosynary. That is the authorities import an underlying conception of `charity' or `gratuity' as the fundamental foundation for their understanding of `benevolence' in this context. In short the authorities propound, and I adopt, a notion of benevolence which involves an act of kindness , or perhaps most particularly, the rendering of assistance voluntarily to those who, for one reason or another are in need of help and who cannot help themselves.''

In that context he considered that the appellant could not be appropriately characterised as a public benevolent institution as there was not any element of ``charity'' to miners in the provision of the rescue service. He added that as the appellant's actions were predicated by statutory obligation that was fatal in this regard.

17. The reasons then continued [at 4179]:

``Finally, whilst there are obvious points of detail in which the present case is to be distinguished from that considered by the Full Court in Metropolitan Fire Brigades Board, there are obvious points of similarity between the two cases. Here the applicant is a governmental body, under the control of the Minister, brought into existence to give effect to government policy that owners of underground coal mines should fund, man and equip the provision of a rescue service capable of dealing with emergencies in underground coal mines. The provision of a rescue service by a statutory body incorporated to discharge that function is outside the ordinary conception of benevolence.''

He added that the discretionary activities had not been taken into account as they were incidental to the performance of the principal function. Furthermore, his Honour said that he would not come to a different opinion if he were to take into account the discretionary activities. He accordingly dismissed the application.

Grounds of appeal

18. The basis of the appeal as pressed and contested is that the primary judge was in error of law in the conclusions which he reached based upon the Fire Brigades case. Other grounds of appeal were addressed to his Honour's reasons basically confining the concept of ``public benevolent institution'' to institutions whose primary activities are eleemosynary, to the notion of benevolence equating to the rendering of assistance voluntarily and the exclusion from the concept of public benevolent institution of a body whose assistance is given under a statutory obligation. Those grounds were not contested on behalf of the respondent.

19. The arguments in written submissions in support of the appeal initially contended that, if necessary, the Court should find that the Fire Brigades case was clearly wrong and should not be followed. That submission was expressly not pursued in the course of oral argument and the issue was not reserved.

General submissions on appeal

20. The submissions for the appellant are that the primary judge was in error because he failed to see the distinction between the scope of government activity, on the one hand, and the activity of mine rescue work, on the other. It was submitted that on a correct understanding the scope of government activity was to set up a system or framework of regulation, but not itself to engage in the activity. A proper understanding of the facts would, it was submitted, characterise the function carried out by the appellant as not a function of government. This was said to be particularly so where the service is funded by mine owners. It was said the capacity for Ministerial control should not have been equated with defacto control and that the true circumstances of operation required to be examined. The foundation of the submission was that the

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appellant is to be characterised in relation to what it does rather than who could be said to control it.

21. These general submissions are made on the basis of the effect of the decision of the Full Court in the Fire Brigades case. The ratio is accepted as being that where a body was ``purely a government body'', so that it was exercising a function of government, it was not a ``public benevolent institution''. The heart of the argument for the appellant is that the circumstances in this appeal can be distinguished on four bases from the approach taken by the Full Court in the Fire Brigades case.

Fire Brigades case

22. The question in that case was whether the Fire Brigades Board of Queensland was a ``public benevolent institution'' within the meaning of s 57A(1) of the FBTA Act. The reasons of the Full Court describe the relevant issues of structure and control of the Board as follows at ATC 4053; FCR 280:

``The appellant was, at relevant times, a body constituted under the Fire Brigades Act, a statute of the State of Queensland passed in 1964,which was repealed by the Fire Service Act 1990. As originally enacted, the repealed Act provided for fire brigade boards with membership consisting of persons, some of whom were appointed by the Governor in Council, some elected by `contributory companies' and some representing local authorities: sec 6(3). In the form the Act had during the relevant period (ie as amended in 1985), the membership comprised persons appointed by the Governor in Council and representatives of local authorities: sec 6(3) of the Fire Brigades Act 1964-1985 (Qld); there was no private representation.

It is unnecessary to go into detail as to the contents of the Fire Brigades Act in order to make the point that the appellant was made by the relevant legislation a governmental body. The responsible Minister was given important powers to control the boards. Under sec 10(b) of the Fire Brigades Act, an appointment of a chief officer or deputy chief officer was subject to the Minister's approval and he was also given power to control many other matters pertaining to boards (see in particular sec 23B), including budgetary control (sec 23A(e)). Again, the Minister had power to recommend the dissolution of a board and the Governor in Council was empowered to act on such recommendation: sec 27. Another reflection of the board's status as an emanation of government was that it was given power to make by-laws and to impose penalties for breaches of the by-laws it made: sec 18.''

23. In relation to the activities of the Fire Brigades Board, the Full Court held that the evidence in the relevant period showed $24 million of the funds of the Board totalling a little over $26 million, was provided by the State Government out of its own funds or from a Trust Fund established under the Fire Brigades Act. Money went into the Trust Fund from ``contributions'' of a compulsory kind by property owners paid to local authorities. In addition, significant amounts were earned from services provided. Nevertheless, the great bulk of the Fire Brigades Board's funds came from the State Government.

24. The reasons of the Full Court continued at ATC 4054; FCR 280-281:

``As might be expected, the appellant's functions under the Act were to control and extinguish fires, protect life and property in case of fire and other related matters: sec 9. Work of this kind has not always been regarded as a governmental responsibility; but it seems to us that, for many years now, controlling and extinguishing metropolitan fires has, in Australia, been regarded as a responsibility of government. It is true that ordinary citizens and those organised into volunteer fire brigades (the existence of such brigades being recognised in the Fire Brigades Act) do some work of the same kind, as a matter of civic duty. That does not detract from the appellant's status as a body constituted, funded and controlled by government and performing functions on behalf of government. The notion that such a body fulfils the description `public benevolent institution' seems a novel one.''

Whether Fire Brigades case can be distinguished

25. The first ground on which it is sought to distinguish the Fire Brigades case is that the reasoning in it was founded on the finding by the Court that controlling and extinguishing metropolitan fires was, in Australia, regarded as a responsibility of government. In contrast, in

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the present case it is submitted that the provision of a rescue service with respect to emergencies arising at underground coal mines (MRA s 3) was not found by the primary judge to be such a responsibility. It is implicit in the submission that it is not open for such a finding to be made in respect of a mines rescue service.

26. The notion that certain activities are the responsibility of government is not one which could comfortably be made by a court today except in very limited circumstances. The Full Court in the Fire Brigades case appeared to take judicial notice of facts to arrive at its views of the responsibilities of government. So it may be said today that ``privatisation'' of the responsibilities of government is wide spread. This is so in relation to matters such as the provision of public hospitals and health services which for many years in Australia have been regarded as the responsibility of government. In the
Registrar of the Accident Compensation Tribunal (Vic) v FC of T 93 ATC 4835 at 4841; (1993) 178 CLR 145 at 164 the majority in the High Court (Mason CJ, Deane, Toohey and Gaudron JJ) said ``The question whether a governmental interest is involved depends very much on the law as it stands from time to time''. While accepting what can be said to involve some governmental interest or function is not confined to closed categories, the majority took into account whether the matters in issue were functions ``ordinarily perceived as governmental in nature or as involving the interests of government''.

27. The reasons of the majority in the Accident Compensation Tribunal case were supported generally by reference to
Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577 at 580 per Gibbs J where he said:

``The expression `authority of a State' refers to a body which exercises power derived from or delegated by the State, but the fact that a body is established under State law and possesses power conferred upon it by State law will not necessarily mean that the body is an authority of a State. For example, a private company, such as a gas company, which provides a public service for profit, may be set up under the company laws of a State, and may be given special statutory powers to enable it to carry on its undertaking, but it does not thereby become an authority of a State. The words `authority of a State' naturally mean a body which is given by the State the power to direct or control the affairs of others on behalf of the State - i.e., for the purposes of and in the interests of the community or some section of it. In some cases it may be decisive that the body concerned is given exceptional powers of a kind not ordinarily possessed by an individual or a company, and that those powers are intended to be exercised for a purpose that would ordinarily be regarded as a purpose of government. On the other hand, in some cases it may be decisive that the body is conducted in the interest and for the profit of its members. In all cases, however, it is necessary to have regard to all the relevant circumstances in order to determine the character of the body in question.''

See also Peter W Hogg, Liability of the Crown (The Carswell Company Limited 1989 2nd edition) at pp 248-250.

28. The principles enunciated by Gibbs J relative to the characterisation of the activities of a body as a responsibility of government would, in our opinion, be the same. That is particularly so in relation to the FTBA Act where the expression ``authority of a State'' is among those referred to in s 136. In short, it is necessary to have regard to all the relevant circumstances to determine the character of the body in question. Whether the work of the kind has always been regarded as a government responsibility is not an essential requirement for characterisation of the body as one of government. The presence of that factor may, however, assist in reaching that conclusion.

29. Accordingly, the point claimed of distinction is not one which weakens the application of the authority of the Fire Brigades case by the primary judge here if it is the case there were other relevant circumstances to sustain his characterisation.

30. The second claimed point of distinction relied upon is that the appellant has never been either funded or controlled by government. Accordingly, runs the submission, unlike the Fire Brigades Board, it was not a body funded and controlled by government.

31. It has already been seen that the funding for the Fire Brigades Board was found to have been provided by the State Government out of its own funds or from a trust fund. There was no finding of the proportions in which each of these sources contributed. The Full Court

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accepted that the ``contributions'' to the Trust Fund, being of a compulsory kind, were simply taxes imposed on property owners. The liability to pay contributions arose from an Order in Council prescribing the amounts of contribution: Fire Brigades Act s 34A and C. In our opinion these provisions are indistinguishable from those applicable to the appellant. Section 29 of the MRA providing for the nature of the payments into the Mines Rescue Fund is almost identical to the provisions of s 29(2) of the Fire Brigades Act considered by the Full Court. The absence of any provision of money by the State Government in the present case is not, in our opinion, a relevant point of distinction because the significance of the contributions in each case as a principal means of revenue raising is apparent. Importantly, the Full Court in Fire Brigades characterised provision of contributions as governmental.

32. Nor do we consider that it is a relevant point of distinction that in the appellant's case the Minister has not sought to exercise powers of control, such as those available by the giving of written directions pursuant to MRA s 14. Reference to the passage in the reasons of the Full Court in the Fire Brigades case at ATC 4053; FCR 280, cited above, makes it apparent that it was the possession of important powers by the responsible Minister rather than the exercise of those powers upon which the Full Court relied. It was on the existence of the powers that the Full Court based its conclusion that the Fire Brigades Board had been made by the legislation relevant to it a governmental body. No relevant point of distinction is therefore provided by reference to the issue of control.

33. Thirdly, it is submitted for the appellant that if regard is had to the character and object of the benevolence of the appellant, it is distinguishable from the character and object of the benevolence of the Fire Brigades Board.

34. The appellant's case relies upon the following passage from
Tangentyere Council Incorporated v The Commr of Taxes (NT) 90 ATC 4352 at 4354; (1990) 99 FLR 363 at 365-366:

``As to the public aspect of the institution, the question whether it is subject to some form of public control is a factor to be taken into account, but public control is not essential - what has been described as `the main criterion' is the extensiveness of the class benefited by the institution, see per Williams J in Maughan v FC of T p 397. In the present case the respondent relied on the statement of Campbell J in
O'Farrell v Municipal Council of Bathurst (1923) 40 WN (NSW) 78 at p 80:

`... I am of opinion that the question as to whether a benevolent institution is public in the sense in which that word is to be read in the exempting provision referred to, is less dependent upon the particular circumstances of its constitution and domestic government, than upon the character and objects of its benevolence.

What are the benefits which the institution dispenses and to whom are the benefits extended are inquiries the answer to which must be decisive on the question of whether or not the institution in question is public in the statutory sense.'

That statement was approved by Jordan CJ in
O'Connell v Newcastle Municipal Council (1941) 41 SR (NSW) 190 at p 193 and by Street CJ in
ACOSS v Commr of Pay- roll Tax (NSW) (1985) 1 NSWLR 567 at p 568. But it will be seen that Hardwick KC's unsuccessful argument for the respondent in Lemm & Ors v FC of T included a submission that the class of women catered for was a relatively small section of the community and he cited both O'Farrell's case and O'Connell's case, to no avail. Williams J said (at p 411) that the conference of benevolence upon an appreciable needy class in the community is ` the most important test', not that it was the only test of what is a public institution.''

At ATC 4357; FLR 369 Angel J said in the same case ``While the authorities do not lay down an all-embracing formula as to what is a public benevolent institution, the number and characteristics of the persons benefited by the institution in question can alone be determinative of the question''. In that case the work of the body was directed to the benefit of aboriginal persons or person of aboriginal descent particularly in relation to specialist housing needs. Although the decision was overturned on appeal, that was on different grounds going to jurisdiction.

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35. In our opinion, this is not a case where it was open to the primary judge for the matter to be determined by the character and number of the objects of the benevolence. There is a considerable contrast between the objects of benevolence in
Legal Aid Commission of Victoria v Commr of Pay-roll Tax (Vic) 92 ATC 2053 and Tangentyere, for example, and the present case.

36. The fourth point of distinction sought to be made is that in arriving at its views the Full Court relied upon the effect of s 57A(2)(b) without the benefit of the explanatory memorandum utilised on the occasion of the introduction of that paragraph. Had that been available, it is submitted, the Full Court would not have reached the view which it did on the issue of interpretation.

37. The reference to s 57A(2) was but one element in the reasoning of the Full Court on the matter. Additionally, the Full Court appears to have reached the conclusion in any event that ``a purely governmental body is hardly ever likely to satisfy the test which the authorities contain''. The appellant's case does not challenge that proposition, only its application in this case. The reference to s 57A(2) was said to suggest that view but, on a reading of the reasons as a whole, it is not the sole source of that view.

38. In any event, the point taken for the appellant answers only the first of the conclusions reached by the Full Court in the Fire Brigades case by reference to the subsection. It does not touch the second reason that the terms of the subsection are consistent with the view that government bodies are ordinarily not thought of as public benevolent institutions.

39. It is important also to note that the Full Court was not saying categorically that a purely government body could never satisfy the tests to become a public benevolent institution. What the Full Court said was that it would be ``hardly ever'' that such would be likely to be the case. Furthermore, the relativities were emphasised by the Full Court in stating that `` in some circumstances'' the connection of a body with government may assist towards a conclusion that it is a public benevolent institution. Those statements leave open the real possibility, reflected on a reading of the whole of the reasons of the Full Court in the Fire Brigades case, that the issue of characterisation must be approached with regard to all the circumstances.

40. For these reasons we consider that the attempt on behalf of the appellant to distinguish the Fire Brigades case does not succeed.

Degree of government characterisation

41. The submissions for the appellant then returned to the question of degree to which the appellant can be characterised as governmental. It is submitted that here the government saw it as enough to establish the appellant to provide rescue services. It is said that particularly as rescue services have never been regarded as a government function, the primary judge should have found that the limit of government involvement was to establish the framework but not to invest the character of government to the appellant itself. It is submitted this should also be seen to be the case even if the Minister gave written directions pursuant to s 14(1) of the MRA concerning the exercise of the appellant's functions, because the funding of the appellant comes from mine owners. It is contended that the extent of government involvement in the activities of the appellant is not such as to entail that it does not have the character of a public benevolent institution: Cf Legal Aid Commission of Victoria v Commr of Pay-roll Tax (Vic) 92 ACT 2053 at 2061-2062.

42. For the appellant it was said in reply that the provisions of s 14(3)-(6) support the contention that the exercise of the appellant's functions is not a function of government. The effect of those subsections is to provide for money to be advanced to the appellant by the Treasurer or appropriated by Parliament where there is a financial loss incurred by the appellant to comply with a written direction from the Minister in the exercise of its functions. It is said that the provisions should be construed to mean that where the appellant is directed to do something which is governmental then government funds it. In our view that is too narrow a reading of the effect of the subsections. Those subsections address the specific situation of a financial loss arising from a Ministerial written direction. That does not mean that the circumstances of the appellant, considered as a whole, cannot be governmental in their character.

43. These general submissions for the appellant do not succeed. In the first place the appellant's case cannot successfully distinguish the Fire Brigades case. Examination of the

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provisions of the Fire Brigades Act (1990) (Qld) and comparison with the provisions of the MRA arguably show the MRA to have established a framework more governmental in character than that at issue in the Fire Brigades case. The Board is established as a statutory body representing the Crown: s 5(2). One director is nominated by the Minister: s 10(3)(c). Any director may be removed by the Minister: sch 1, cl 5(2). The Chief Executive Officer may be removed by the Governor after consultation with the Board: sch 2, cl (5). There is the Minister's power to give written directions on Board functions: s 14(1). The Board works to a corporate plan after Ministerial input to it and keep the Minister informed: s 16(2) and (6). Board staff may be drawn from governmental entities: s 25. Governmental authority raises contributions for the Trust Fund: s 31. The Minister has potential for involvement in the manner of investment (s 34(b)(ii)) and payment of fees to members of the Brigade (s 39(3)). The MRA itself is subject to Ministerial review: s 51. The combined effect of these provisions is such as to result in the appellant being characterised as governmental.

44. There still remains the question whether, being governmental, the appellant should nevertheless have been found to be a public benevolent institution. In our view the degree to which the appellant is properly characterised as governmental precluded a finding to that effect.

45. It follows there was no error of law in the conclusions of the primary judge in the application of the Fire Brigades case to the circumstances of the appellant. The characterisation of the appellant which he reached was open to him on the evidence and in our view was correct. He was entitled to rely in addition upon the ordinary conception of benevolence and to take into account experience in the use of the term in issue:
Perpetual Trustee Company Limited v FC of T (1931) 45 CLR 224 at 233. Neither in accordance with that experience nor with regard to the extent to which government had chosen to involve itself in the appellant could the primary judge's conclusion be said to be an error of law.


46. For these reasons we consider the appeal should be dismissed.


1. The appeal be dismissed.

2. The appellant pay the respondent's cost of the appeal.

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