Gyles J

Federal Court


Judgment date: 28 November 2002

Gyles J

The Trustees of the Indigenous Barristers' Trust - The Mum Shirl Fund (``the Trust'') sought endorsement of the Trust as a deductible gift recipient pursuant to s 30-125 of the Income Tax Assessment Act 1997 (Cth) (``the Act''). The Deputy Commissioner of Taxation refused that endorsement. The Trust objected. On 5 February 2002 the respondent made an Objection Decision disallowing that objection. The application to the Court is against that Objection Decision. The question is thus whether the Trust is a deductible gift recipient within the meaning of the Act.

2. The Trust was established by deed dated 6 August 2001. The critical parts of the deed, for present purposes, are as follows:


A. It is recognised by the body of members of the New South Wales Bar Association that indigenous persons seeking to make a career at the New South Wales Bar are frequently in circumstances of poverty, suffering or misfortune, both financially and culturally, which constitute a significant obstacle to the pursuit of their chosen career.

B. The body of members of the New South Wales Bar Association consider that it is in the interests both of Australians generally and of all indigenous persons for the number of such persons practising at the New South Wales Bar to increase.

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C. For the purposes of facilitating the pursuit of the practice of the law by indigenous persons and in order to make provision for the objects set out in this deed, the Settlor wishes to create the trusts hereinafter set out and thereby to establish a Trust Fund, with a physical presence at the offices of the New South Wales Bar Association, which will be a public benevolent institution for the relief of such poverty, suffering, helplessness, misfortune or other disability of indigenous persons as may constitute an obstacle in the way of their being able to practice at the New South Wales Bar.

D. For the purpose of giving effect to such desire the Settlor has, upon the execution of this Deed, transferred to the Trustees the sum of Ten Dollars ($10) (hereinafter referred to as `the Settled Property').


3. Declaration of Trust

3.1 The Settlor hereby declares that the Trustees shall and the Trustees hereby declare that they will henceforth stand possessed of the Trust Fund and the income thereof upon the trusts and subject to the powers and provisions hereinafter expressed or implied concerning the same and will conduct, manage and control all or any of the investments or pursuits which may be hereinafter acquired or pursued by the Trustees for the purposes set forth in clause 3.2 hereof.

3.2 The purposes for which the Settlor has established the trusts upon which the Trustees shall stand possessed of the Trust Fund and the income thereof shall be any or all of the relief of poverty suffering, helplessness, misfortune or other disability of indigenous persons and in particular the relief of any such disabilities which may constitute an impediment to their pursuit of a career at the New South Wales Bar.

4. Distribution of the Trust Fund

4.1 The Trustees may determine from time to time in their absolute and unfettered discretion that the whole or any part or parts of the Trust Fund or of the income thereof shall be distributed or credited to or vested in or be applied towards the objects set out in clause 3.2 hereof.

4.2 Without derogating from the provisions of clause 3.2, the Settlor declares that in exercising the discretion conferred by this Deed to distribute or otherwise apply from time to time any part or parts of the Trust Fund and the income thereof the Trustees may expend the whole or any part of the Trust Fund:

  • 4.2.1 In meeting any of the costs of legal or related education or paying any immediate living expenses while undertaking that education of an indigenous person for whom coming to the New South Wales Bar is a primary career objective;
  • 4.2.2 In paying the costs of attendance of any indigenous person at any Reading Program conducted by the New South Wales Bar Association;
  • 4.2.3 In providing for any indigenous person books, equipment, apparel or any other materials reasonably necessary for the establishment of a practice at the New South Wales Bar;
  • 4.2.4 In providing moneys to avoid any personal or financial hardship of an indigenous person who is attending the Reading Program or during any other period within that person's first five years of practice at the New South Wales Bar;
  • 4.2.5 In paying on behalf of an indigenous person during his or her first five years of practice at the NSW Bar part or all of the cost of chambers or other costs reasonably necessary for the conduct of practice, including but not limited to the annual practising certificate and the annual premium for professional indemnity insurance.

4.3 Without limiting the generality of sub- clause 4.1 hereof, the Trustees may, in their absolute and unfettered discretion and at any time or times, transfer, assign and convey the Trust Fund or any part thereof to any person or persons where such transfer, assignment or conveyance is in conformity with the purposes of this Trust as set out in Clause 3.2 hereof.''

(emphasis added)

3. The definition of ``indigenous person'' is a person who:

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``(a) is either:

  • (i) an Aboriginal person, meaning a person of the Aboriginal race of Australia; or
  • (ii) a Torres Strait Islander, meaning a descendant of an indigenous inhabitant of the Torres Strait Islands; and

(b) identifies as an Aboriginal person or a Torres Strait Islander; and

(c) is recognised or accepted by an Aboriginal or Torres Strait Island community as a member of that community.''

4. The Settlor was Ruth McColl, then President of the New South Wales Bar Association. The original Trustees were Daniel Gilbert, Mullenjaiwakka, Bret Walker and Chris Ronalds. Apart from Mr Gilbert, who was a solicitor, the other original trustees were barristers. The power to amend and appoint trustees is vested in the President of the New South Wales Bar Association from time to time.

5. The evidence as to donations to the trust was as follows:

``The applicant trustees anticipate that in due course there will be fund-raising exercises undertaken, primarily with the membership of the Bar Association to whom the existence of the Fund will be promoted. The existence of the Fund will also be promoted to the faculty staff and students of Law Schools, in association with their indigenous programs, and with other agencies associated with indigenous law programs and indigenous law graduates. The applicant trustees anticipate that between $25,000 and $50,000 should be available annually to provide assistance to applicants who qualify under the terms of the deed and that in due course the applicant trustees will develop protocols and guidelines to assist them in evaluating applications to the Fund for assistance.''

There are in excess of 1,800 barristers practising in New South Wales.

6. The Executive Director of the New South Wales Bar Association gave evidence as to disadvantages suffered by indigenous persons insofar as practice at the Bar was concerned, and similar evidence was given by the Dean of the Faculty of Law at the University of Technology. Evidence was also given by the Director of the Centre of Aboriginal Economic Policy Research (``the Centre'') at the Australian National University (``ANU''). The Centre is a multi-disciplinary Social Sciences Research Centre at the ANU that focuses on indigenous Australian economic policy and economic development issues, including social justice and the socio-economic status of indigenous Australians. The Centre was established in 1990 and is funded by the ANU as well as by the Aboriginal and Torres Strait Islander Commission and the Commonwealth Department of Family and Community Services. His evidence included the following:

``10. In more recent years I have conducted studies on the census data to track patterns in the socio-economic position of Indigenous Australians. These studies show that Indigenous Australians remain the most disadvantaged section of the Australian population. Thus, despite programs in place in the last thirty years designed to address that disadvantage, Indigenous Australians nonetheless still remain the most disadvantaged section of the Australian population.

11. This has again been made clear from early results from the 2001 Census that again clearly demonstrate that the Indigenous population is growing quickly at over 3% per annum and that the ratio of Indigenous to non-Indigenous incomes remains low at 0.67 indicating that Indigenous people remain relatively poor.

12. The proportion of Indigenous young people who attend post-secondary training is significantly below that of the rest of the Australian population and the employment statistics demonstrate a great disparity between the unemployment rates of Indigenous and non-Indigenous people. There is some variation between the States but the overall picture is that only a small proportion of Indigenous people are in full- time employment.

13. While detailed information from the 2001 Census is not available for NSW, research as [sic] been undertaken by a CAEPR colleague Dr John Taylor that analysed 1991 and 1996 Census data for New South Wales (J Taylor, 1998. `The relative economic status of Indigenous people in New South Wales, 1991 and

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1996'; CAEPR Discussion Paper 173/1998, CAEPR, ANU, Canberra
). This research shows that the unemployment rate for Indigenous people in NSW is 3.1 times the non-Indigenous rate and that the Indigenous/ non-Indigenous income ratio is 0.59 for median incomes. Dr Taylor's research on income distribution also shows a concentration of Indigenous incomes occurs at the lower end of the distribution, only 23% of Indigenous individuals earned over $40,000 per annum, in marked contrast to all other adults with 46% of individual incomes in excess of $40,000 per annum.

14. Only a small proportion of Indigenous persons are represented in the professions, a situation that has been thoroughly documented with official statistics on occupational segregation. This under- representation is very clearly also the case in the profession of a barrister. For example, in NSW it is recorded that there are currently only two Indigenous barristers out of over 1,800 - 0.1% of barristers are Indigenous in contrast to 2% of the NSW population that is Indigenous. This is a reflection of a range of disadvantages suffered by Indigenous persons of which the principal one is lack of the necessary financial resources with which to undertake the risks of self employment (See B. Hunter, 1999. `Indigenous self-employment: miracle cure or risky business?', CAEPR Discussion Paper 176/1999, CAEPR, ANU, Canberra). This disadvantage is compounded by social disadvantages suffered by Indigenous persons for whom community support may be strong in many ways but not in the form of the necessary financial backing to commencing practice as a professional.

15. There is a growing body of theoretical research backed by empirical evidence that suggests that social exclusion for relatively poor people might hamper the formation of wealth and its inter-generational transfer. Official statistics show that Indigenous income status has remained intractably low for decades now and this has hampered the establishment of an asset base at the household level reflected, for example, in relatively low home ownership rates. This clearly hampers integration into the mainstream economy and especially the upper echelons of the professions.

16. Similarly, most Indigenous families do not have an established banking record or any other financial history which might enable individual family members to gain access to loans from banks or other financial institutions. The issue of the difficulties that Indigenous clients have in accessing mainstream consumer and commercial finance was recently highlighted in a conference `The Delivery of Banking and Financial Services to Indigenous Communities' convened by Reconciliation Australia in Sydney, 8-9 May 2002.

17. Additionally, Indigenous health status also remains intractably low with Indigenous males in particular having a life expectancy that is 20 years lower than for non-Indigenous males. The incentive to invest in further education, and especially further qualifications, is severely affected by this. Because investing in being a barrister requires an up- front cost that would normally require a loan, the rate of return from such an investment is reduced owing to the likelihood of a foreshortened professional career.

18. Indigenous students, both young students and mature students, are often alienated during their studies in a university environment where they suffer from a lack of role models and a level of poverty substantially more acute than that suffered by non-Indigenous students. In the upper echelons of professional practice such role models are extremely important because they are so rare. There are often social and community pressures for Indigenous solicitors to work for Indigenous community organisations. While such employment is very worthwhile, it would also be of public benefit to have more Indigenous barristers especially given the continuing high levels of Indigenous arrest in New South Wales as documented in the research undertaken by Dr Boyd Hunter last year (B.H. Hunter 2001. `Indigenous Australian arrest rates: Economic and social factors underlying the incidence and number of arrests', CAEPR Working Paper No 10, CAEPR, ANU, Canberra).

19. For the reasons set out in this affidavit it is my opinion that Aboriginal people in Australia generally and Aboriginal persons

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aspiring to practice at the Bar, including the New South Wales Bar, are in a significantly disadvantaged position compared with the majority of non-Indigenous persons and are in need of particular protection and assistance. It is also my opinion that the functions and activities of the Fund, as described in the affidavit of Phillip Selth sworn in these proceedings on 17 June 2002, are designed to and will ameliorate the disadvantaged position of aspirants to practice at the NSW Bar. The mere existence of such a permanent institution as the Fund, supported by the New South Wales Bar Association, and to which Indigenous persons aspiring to practice as barristers will be able to make application for assistance, will provide valuable support and encouragement to such persons.''

7. Subdivision 30-B of the Act comprises Tables of Recipients for Deductible Gifts. The general structure can be gleaned from the table of sections, which is as follows:

   30-20    Health

   30-25    Education
   30-30    Gifts that must be for certain purposes
   30-35    Gifts to a public fund established to benefit a rural school
            hostel building must satisfy certain requirements

   30-40    Research

                        Welfare and rights
   30-45    Welfare and rights

   30-50    Defence

   30-55    The environment
   30-60    Gifts to a National Parks body or conservation body must
            satisfy certain requirements

                    Industry, trade and design
   30-65    Industry, trade and design

                           The family
   30-70    The family
   30-75    Marriage guidance organisations must be approved

                     International affairs
   30-80    International affairs
   30-85    Declaration must be in force at the time you make the gift

                     Sports and recreation
   30-90    Sports and recreation

                     Philanthropic trusts
   30-95    Philanthropic trusts

                    Cultural organisations
   30-100   Cultural organisations

                      Other recipients
   30-105   Other recipients''

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8. Section 30-45 is as follows:

  • `` 30-45 Welfare and rights
  • (1) This table sets out general categories of welfare and rights recipients.
    Welfare and rights -- General
    Item     Fund, authority or institution             Special conditions
    4.1.1    A public benevolent institution none
    4.1.2    A public fund established before           none
             23 October 1963 and maintained for the
             purpose of providing money for public
             benevolent institutions or for the
             establishment of public benevolent
    4.1.3    A public fund established and maintained   none
             for the relief of persons in Australia
             who are in necessitous circumstances
  • (2) This table sets out specific welfare and rights recipients.
    Welfare and rights -- Specific
    Item     Fund, authority or institution             Special conditions
    4.2.1    Amnesty International                      none
    4.2.2    the Child Accident Prevention Foundation   none
             of Australia
    4.2.3    the National Foundation for Australian     none
             Women Limited
    4.2.4    the National Safety Council of Australia   none
    4.2.5    the Pearl Watson Foundation Limited        none
    4.2.6    the Royal Society for the Prevention of    none
             Cruelty to Animals New South Wales
    4.2.7    the Royal Society for the Prevention of    none
             Cruelty to Animals (Victoria)
    4.2.8    the Royal Queensland Society for the       none
             Prevention of Cruelty
    4.2.9    the Royal Society for the Prevention of    none
             Cruelty to Animals (South Australia)
    4.2.10   the Royal Society for the Prevention of    none
             Cruelty to Animals Western Australia
    4.2.11   the RSPCA (Tasmania) Incorporated          none
    4.2.12   the Society for the Prevention of          none
             Cruelty to Animals (Northern Territory)
    4.2.13   the Royal Society for the Prevention of    none
             Cruelty to Animals (ACT) Incorporated
    4.2.14   the RSPCA Australia Incorporated           none
    4.2.15   The Business Against Domestic Violence     the gift must be made
             Reserve                                    after 22 April 1998
    4.2.16   Katherine District Business Re-            none
             establishment Fund
    4.2.17   the Community Disaster Relief (Sydney      the gift must be made
             Hail Storm Assistance) Fund                after 14 April 1999
                                                        and before 15 April
    4.2.18   The Linton Trust                           the gift must be made
                                                        after 2 December
                                                        1998 and before 3
                                                        December 2000
    4.2.19   Reconciliation Australia Limited           the gift must be made
                                                        after 6 December

9. The primary contention on behalf of the Trust is that it is a ``public benevolent institution'' within Item 4.1.1 of the Table in s 30-45 of the Act, and so entitled to be endorsed as a ``Deductible Gift Recipient'' pursuant to s 30-125.

10. There is no definition of a ``public benevolent institution'' in the Act. It is a description which has a long history in relation to exemption from taxes of one sort or another, including rating, income tax, estate duty, sales tax and payroll tax, and there was a considerable body of authority construing those words when the relevant parts of the Act were enacted. In those circumstances, the respondent submits that Parliament must have intended the words to bear the meaning already judicially attributed to them (
Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing & Engineering Employees (1994) 181 CLR 96 at 106). This may be accepted in general terms subject to such guidance as may be obtained from the proper construction of the relevant parts of the Act. The prior authorities are certainly at least cogent. The composite phrase describes one concept and it has been said that it is not to be broken up. Nonetheless, to qualify, an applicant must answer all of the required characteristics.

11. The respondent's particular submissions, in summary, were:

  • (a) that the class of persons to whom the Trust will provide benefits is too limited to constitute ``the public'';
  • (b) that the activities of the Trust do not fall within the terms ``relief of poverty, sickness, destitution or helplessness''; and
  • (c) that the Trust does not constitute an institution.

12. As to the requirement that the institution be public, the respondent submitted that the Trust has been established to assist indigenous persons pursue a career at the New South Wales Bar. Assistance is not available to indigenous persons generally. It is not available to all indigenous persons pursuing a legal career, nor to all indigenous persons pursing a career as barristers. Assistance is restricted to indigenous persons pursuing a career at the New South

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Wales Bar, which comprises something over 1,800 persons. It was submitted that the class of eligible persons is so narrow that it does not constitute ``the public'' in the sense of a substantial, appreciable, extensive or sufficient section of the community (
Maughan v FC of T (1942) 7 ATD 131 at 137; (1942) 66 CLR 388 at 398.1;
Little Company of Mary (SA) Inc v Commonwealth (1942) 66 CLR 368, per Rich J at 383-384, citing
Verge v Somerville [1924] AC 496 at 499;
FC of T v Royal Society for the Prevention of Cruelty to Animals Queensland Inc 92 ATC 4441 at 4445; [1993] Qd R 571 at 577 per Fitzgerald P).

13. Counsel for the Trust accepted that the principal test as to whether an institution is public is conferring benevolence upon an appreciable needy class in the community, referring to the reasons of Williams J in
Lemm & Ors v FC of T (1942) 7 ATD 138 at 144; (1942) 66 CLR 399 at 411, which were agreed in by the other members of the Court. He submits that all indigenous persons are potentially recipients of assistance and that they or, alternatively, needy indigenous persons form an appreciable section of the public. I agree with that submission. It is true that, particularly in the short term, there may be few indigenous persons with the qualifications or motivation to seek assistance. Indeed, that, in a sense, is the condition to be alleviated. The question, rather, is who might be benefited by the benevolence. The only restrictions upon the class are the need to be indigenous and disadvantaged. The fact that only some of a larger class can be catered for is not to the point. In
Perpetual Trustee Co Ltd v FC of T (1931) 45 CLR 224, Royal Naval House could only accommodate a fraction of the petty officers and men in His Majesty's Australian Navy and lower ratings from warships from foreign countries, yet the public nature of the institution was not questioned (eg, per Evatt J at 235). It would unduly constrict the benefit intended by the legislature in granting the exemption in question if it is only available in relation to those who are able to cater for or benefit all or most of or a substantial number of a potentially large section of the public. Further, in my opinion, the fact that the Bar of New South Wales may be relatively small compared with the general population is of little relevance. There are no restrictions on admission apart from qualification. (See generally the analysis of the authorities by Allsop J in
Ambulance Service of New South Wales v DFC of T 2002 ATC 4681; [2002] FCA 1023.)

14. So far as benevolence is concerned, it is submitted for the respondent that a public benevolent institution is an ``institution organised for the relief of poverty, sickness, destitution or helplessness'' (Perpetual Trustee Co Ltd per Starke J at 232). It is submitted that funding the education of and assisting a person to be established in self-employment in a profession do not constitute relief of poverty, sickness, destitution or helplessness. It is submitted that ``relief'' is not synonymous with ``benefit'' (
Joseph Rowntree Memorial Trust Housing Association Ltd v Attorney General [1983] 1 All ER 288 at 295;
City of Hawthorne v Victorian Welfare Association [1970] VR 205 at 208-209). It is submitted for the Trust that it is well recognised that indigenous persons are deserving of additional help to alleviate the disadvantages they suffer. Most (if not all) potential indigenous barristers do not have the necessary financial and social support to achieve that aim. Community support may be strong in other ways but it is not able to provide the necessary financial backing to commence practice as a barrister. Their very impecuniosity is what prevents these persons from starting practice as a barrister. It is this impediment which the Fund exists to overcome, or, at least, ameliorate. It was submitted that, in this way, the use of the gift fund will be directed only at the relief of poverty for that group. It was argued that poverty in this sense is, of course, relative but it is well established that the law does not require that the persons to be benefited should be destitute or even on the border of destitution (Lemm at ATD 144; CLR 410 per Williams J;
FC of T v Launceston Legacy 87 ATC 4635 at 4646; (1987) 15 FCR 527 at 541 per Northrop J; and
Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 139 FLR 236 at 252 per Mildren J).

15. Particular emphasis was placed upon the following statement by Hely J in
Mines Rescue Board of New South Wales v FC of T 2000 ATC 4191 at 4196-4197 [30]; (2000) 44 ATR 107 at [ 30]:

``... the authorities have basically confined the concept of `public benevolent institution' to institutions whose primary activities are eleemosynary. That is the

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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.''

It is contended for the Trust that the affirmation by the Full Court of that decision (
Mines Rescue Board of New South Wales v FC of T 2000 ATC 4580; (2000) 101 FCR 91) effectively approves that statement. It was submitted that the purposes for which the gift fund will be utilised, as set out in subclauses 3.2, 4.1 and 4.2 of the Trust deed, show that this test is met - there will be acts of ``kindness'' and the assistance will be rendered ``voluntarily'' to any indigenous law students or indigenous law graduates who are suffering the disabilities identified in cl 3.2 of the Trust deed.

16. It is clear, however, that in the passage to which reference is made Hely J was not addressing himself to the issue which is raised here. The passage occurred in the process of holding that the body in question, in exercising statutory functions, was not a public benevolent institution notwithstanding that the activities undertaken in discharge of its principal function involved the relief of suffering, distress or misfortune. Hence, the emphasis upon the eleemosynary or charitable aspects of the concept. Indeed, his Honour adopted the explanation of the concept by Thomas J in FC of T v Royal Society for the Prevention of Cruelty to Animals, Queensland Inc at ATC 4448-4449; Qd R 581-582. In that analysis, Thomas J pointed to the fact that in Perpetual Trustee Co Ltd the High Court had deliberately taken a narrow view of the concept, basing itself in part upon the then legislative history, such that the narrow view was now entrenched to such an extent that it may be that only the High Court could take a different view. Thomas J referred to the possibility that a wider view might be implicit in the decision of the Full Court in
Metropolitan Fire Brigades Board v FC of T 90 ATC 4052; (1990) 27 FCR 279. I cannot discern any relevant widening of the concept for present purposes in that decision, which considered a question very similar to that decided in the Mines Rescue Board case which, indeed, effectively followed the Metropolitan Fire Brigade case. Whilst it would be a mistake to treat particular statements in the judgments in Perpetual Trustee Co Ltd as a statute, bearing in mind that the judges were considering the meaning of ordinary English words more than seventy years ago, the decision remains and it would not be appropriate for a single judge of this Court to depart from any principle which can be discerned from it.

17. The submission for the respondent is that a public benevolent institution is limited to the precise description by Starke J:

``[A]n institution organised for relief of poverty, sickness, destitution, or helplessness.''

(emphasis added)

To take one phrase from one judgment, out of context, is not an adequate way of understanding the effect of the decision. After the passage quoted, Starke J went on to say:

``The Royal Naval House has none of these characteristics: it is organized for the accommodation and recreation of the naval forces of His Majesty and its hospitality is also extended to the naval forces of other countries. It would surprise English- speaking people, I think, to learn that in the Royal Naval House naval forces are accommodated and entertained at a public benevolent institution.''

A somewhat longer account of the facts relevant to this question appears at 226-228 of the report, being the relevant parts of the stated case, together with some further fleshing-out of the case, apparently by way of evidence. A summary of the facts by Evatt J at 234 was as follows:

``The Royal Naval House stands on land situate in the City of Sydney. The Lords Commissioners of the Admiralty, the Government of the State of New South Wales, the officers and men of the Royal Navy and the general public of the State assisted in providing the funds necessary for the erection of the building and certain later alterations to it. The land was made available by the Government of New South Wales and the title is vested in a public authority representing that Government. The building on it is used for the benefit of the petty officers and lower ratings of His Majesty's Navy by providing

ATC 5065

accommodation and recreation for them when ashore. No written constitution or trust deed is in existence but the House is controlled by honorary trustees and committees, and representatives of His Majesty's Australian Navy assist in its control.

The services of the House are largely availed of by the petty officers and men of His Majesty's and His Majesty's Australian Navy, and when warships from foreign countries visit Sydney Harbour, the lower ratings are also allowed to use the House.

Charges are made by the governing authority of the House for sleeping accommodation, for meals, for baths, for billiards and for lockers but money and valuables of the sailors are taken care of free. The charges are described as small (everything is relative - a bath costs sixpence) but it is noteworthy that in the year 1929-1930 the amount received in respect of such charges was £3,202, while the total expenditure for that year was only £ 3,589, including a salary and wages bill of £ 2,251. No rent is paid to the Government of New South Wales and the loss on each year is apparently made up by a small grant of £ 250 from the Commonwealth Government and by subscriptions and donations. One special concession has been stressed in argument: when men ask for a bed for the night, they may obtain it on a promise to pay on the next pay day. These promises are usually honoured.''

18. These facts are sufficient to show that it is likely that a trust in those terms would be held to be a charitable trust being for purposes beneficial to the community notwithstanding that there was no eleemosynary element and so entitled to estate duty exemption as the legislation had previously been framed (
Chesterman v FC of T [1926] AC 128). The question for the High Court was whether amendments to the Estate Duty Assessment Act 1914 (Cth) which substituted the phrase ``public benevolent institution'' for ``charitable purposes'' changed the position. It was that question which was decided in principle and the formulation of reasons by the majority judges differed somewhat. For example, Dixon J used the phrase ``the relief of poverty, distress, suffering or misfortune'' (at 233) (emphasis added). Evatt J said:

``Such bodies vary greatly in scope and character. But they have one thing in common: they give relief freely to those who are in need of it and who are unable to care for themselves.

Those who receive aid or comfort in this way are the poor , the sick , the aged , and the young . Their disability or distress arouses pity, and the institutions are designed to give them protection. They are very numerous - `the nobler a soul is the more objects of compassion it hath' - and they have come to be known as `benevolent institut- ions'.''

(emphasis added)

19. In my opinion, the ratio decidendi was that a public benevolent institution must relieve disadvantage or misfortune rather than benefit a worthy community objective. The nature of such disadvantage was not the issue and was not decided. It is not, in my opinion, limited to any particular examples given by individual judges in that case. In particular, it was not held that benevolence is limited to the relief of poverty as that phrase was understood according to the law of charitable trusts. Indeed, all of the justices framed their description of benevolence disjunctively.

20. Perhaps the most illuminating of the High Court decisions on its facts for present purposes was Maughan. Relevant parts of the stated case included the following (at ATD 132-134; CLR 389-393):

``4. The Association was incorporated in New South Wales in the year 1927 (under the Companies Act 1899) to take over and carry on as a going concern an unincorporated association of the same name which was founded in the year 1882. The objects of the Association so far as material are as follows:-

  • (b) To carry on and conduct an institution or Institutions in the City of Sydney and/or elsewhere in the State of New South Wales or elsewhere in the Commonwealth of Australia for the development as good citizens of the boys of the State or the Commonwealth; to cultivate Christian manliness; to promote habits of reverence, loyalty, industry, discipline and self-respect. Nothing herein contained or implied shall limit the class of persons to whom assistance

    ATC 5066

    or benefit of any kind may be given by the Association.
  • (c)... to provide in the existing buildings of the Association or in any other buildings or erections which may hereafter be acquired, leased or lent to or erected by the Association at Sydney aforesaid and/or elsewhere rooms for the meeting, instruction, amusement, bathing, exercise, reading, writing, social intercourse and general welfare and benefit of the persons referred to in sub- clause (b) of this clause and also to afford to such persons conveniences and facilities for all or any of such purposes and also if deemed convenient to provide convalescent homes and medical and other attention on such terms and conditions as the Association may from time to time prescribe.
  • (f) To provide for the delivery and holding of lectures, entertainments, games, sports, tournaments, meetings, classes, debates and conferences calculated directly or indirectly to benefit the persons using any of the buildings or institutes of the Association or otherwise to advance the interests of the Association and in connection with any such matters to offer, give or contribute prizes, medals, awards and certificates....
  • (g)... to accept donations and bequests (whether of real or personal estate) for all or any of the objects of the Association.
  • (h) To collect and receive money by voluntary contribution, collections, subscriptions, donations, legacies, payments by public bodies and others or from the proceeds of entertainments for any of the objects or purposes of the Association.


11. The material facts relating to such activities are as follows:-

  • (a) The Association is wholly maintained by (or out of the income of funds obtained by) public donations, subscriptions and other voluntary contributions of the kinds specified in sub-clauses (g) and (h) of its objects. It receives no Government subsidy. Its annual income for some years has not been sufficient to meet its expenditure.
  • (b) The work of the Association is confined to activities carried on in two buildings - one at Surry Hills and the other at Pyrmont taken over from the unincorporated association. Each building has three floors and was specially designed for the purposes of the Association.
  • (c) The facilities of the Association are available to any boy who, upon enrolment, is not less than eight and not more than fourteen years of age. Boys over fourteen are not accepted, but any younger boy who joins a branch may continue to attend the branch for a year or two after the maximum age for joining. Enrolment is simply a card entry of the name, age, address, school and names of parents of the boy concerned. Each attendance is recorded and statistics are compiled. The enrolment of boys using the facilities has for some years been of an average between 800 and 900 boys a year.
  • (d) No boy is debarred from enrolling by reason of his race or creed, the locality of his home, or the circumstances of his parents. The boys who enrol are unprivileged and invariably in poor circumstances. Boys enrolled at the Surry Hills branch come from Surry Hills, Redfern, Waterloo and, in some cases Paddington; those of the Pyrmont branch come from Pyrmont, Glebe and Ultimo. These districts comprise and contain some of the worst slum areas of Sydney. The houses mostly abut on the streets in which - being the only playgrounds - were it not for the work of the Association the boys would spend their leisure hours.
  • (e) The Association does not canvass boys to join. Common knowledge of the facilities available at the Association's branches attracts the boys to join The facilities are designed to provide the boys with a wholesome environment, and intelligent occupation for their leisure hours, in substitution for the demoralizing influences of the streets and, even, in some cases, of the boys' homes.
  • (f) Most of the boys who attend are barefooted and poorly clad; many are

    ATC 5067

    dirty and suffering from malnutrition. Cleanliness is inculcated and washing facilities, including soap but not towels (the boys are encouraged to bring these with them), are provided for that purpose. There is no sleeping accommodation for the boys in either of the two buildings, and no food is provided except at the Christmas treat and by means of occasional distributions of fruit. Physical defects are not treated except indirectly by way of physical training and recreation and advice.
  • (g) The superintendent has three paid assistants - not all on full time - who supervise and control the boys and allocate them to their classes. One is a skilled instructor in physical training - an army man. The handicraft classes are taken by the assistants and a number of voluntary helpers.
  • (h) Each branch is open from 6.30 to 9pm on all week days and from 7 to 8pm on Sundays. This is supplemented by certain after-school hours - for class work in metal work and carpentry and use of library - on several afternoons of each week and by special occasions. Some boys attend every day; others only occasionally. They are not coerced to attend or to take part in class work, but attendance is encouraged. The boys are allowed to take home any articles they may make in the handicraft classes.
  • (j) First aid is administered and minor injuries treated by the staff, two of whom are qualified to do so. Antiseptics and bandages are supplied to the Association (free of charge) for these purposes. Medical and dental attention is not otherwise provided. In serious cases, however, the Association gets into touch with hospitals, dental institutions, &c, to ensure that sufferers receive adequate treatment - but not at the Association's expense or in its care.
  • (k) Ethical training, collective and individual, is not neglected, but generally the objective rather than the preceptive method is employed. Boys found stealing or otherwise engaged in objectionable conduct are taken up in the act and made to realize the errors and consequences of their ways. Occasionally boys in the hands or under the notice of the police are, at the request of the latter, enrolled on probation - generally with satisfactory results.
  • (l) Boys who have enrolled when seeking employment are assisted to some extent by the Association. The Association gets into touch with employers for that purpose and knowledge gained in class of the capabilities of boys often enables the Association to place the boys with inquiring employers.
  • (m) Certain interested bodies and persons (principally the Sydney Needlework Guild) have annually for many years supplied the Association with quantities of new clothing (singlets, shirts, trousers, pyjamas, &c) for distributions in necessitous cases during the winter months.
  • (n) No charge is made for the use by the boys of any of the Association's facilities - including picture shows and instruction in handicraft.''

McTiernan J said (at ATD 135; CLR 395):

``... Poverty is a relative condition. It is I think hardly open on the facts of the case to draw any other inference than that the charity of those who maintain the Boys' Brigade Incorporated is excited by social conditions arising from poverty and that the dominant object of the institution is to elevate boys adversely affected by those conditions. It is not probable that many of the boys for whose welfare this institution exists could overcome those conditions without its aid.''

Williams J said (at ATD 136; CLR 397):

``The headquarters of the Association are located in two buildings situated one in Surry Hills and the other in Pyrmont, both of which are slum areas. There it provides free of charge facilities for the boys of these poor districts which their more fortunate brothers obtain in their own homes. This keeps them off the streets, provides intelligent occupation for their leisure hours, and generally contributes to their physical, mental and moral well-being and improvement. As enrolment is voluntary, the fact that on an average between 800 and 900 boys a year avail themselves of these

ATC 5068

facilities proves that the Association caters for a real want.''

The Boys' Brigade was held to be a public benevolent institution, notwithstanding that the facilities were available to any boy who, upon enrolment, was not less than eight and not more than fourteen years of age and that the activities of the organisation were not directed to supplying what could be called the necessities of life or the relief of poverty as such. The approach of Northrop J in Launceston Legacy particularly at ATC 4647; FLR 542 is consistent with that conclusion.

21. A persuasive and comprehensive analysis of the relevant authorities including Perpetual Trustee Co Ltd was conducted by Gobbo J in
Commr of Pay-roll Tax (Vic) v The Cairnmiller Institute 92 ATC 4307; [1992] 2 VR 706. His Honour's conclusion (agreed with by the other members of the Court) was (at ATC 4311; VR 711):

``In my opinion the authorities since the Perpetual Trustee Case do not establish, any more than that case did, that to be a public benevolent institution it must serve only those in financial need without charge or for a small charge. In my opinion the authorities deny that relief of poverty or the provision of services only to those in financial need are essential characteristics of benevolence. Nor do they establish that the levying of a charge for the services removes the element of benevolence. The Naval House exemption claim did not fail because a charge was levied but because it could not at the end of the day be said that the ratings were suffering any distress or misfortune or any real need, whether financial or otherwise, that aroused compassion or pity.

This takes one to the remaining argument of the appellant which incorporated the fact that a charge was made, namely that the subject institute did not have the necessary character of benevolence.

The findings of the learned primary judge were that the service was predominantly the treatment of mental conditions or disability by psychotherapy and that these conditions were such as to arouse community compassion and so engender the provision of relief. Those findings were sufficient in my opinion to bring the respondent within the concept of public benevolent institution as described in the Perpetual Trustee Case and so demonstrate the element of benevolence.''

and at ATC 4312; VR 712:

``It is no less benevolent to assist an AIDS sufferer because that person can afford to pay, for the issue here is not the relief of poverty but the relief of distress. The question of payment for services should not be approached on the basis that the making of a charge is prima facie inconsistent with benevolence. To do this is to make poverty in the nature of destitution an essential characteristic of benevolence.''

(see also Tadgell J at ATC 4312-4313; VR 713-714).

22. In my opinion, the undisputed evidence leads to a finding that, at the time the Trust was settled, and for the foreseeable future, many, indeed most, indigenous persons in Australia could properly be described as ``dis- advantaged'' generally and, in particular, in relation to education and the ability to take a place in the business and professional world of Australia. Further, in my opinion, the benefits which can be afforded by the Trust are calculated to relieve that disadvantage. It is not to the point to advert to the fact that there are, no doubt, many non-indigenous Australians who suffer similar disadvantages of one sort or another, and that there are many other Australians who do not have the means or motivation to enter a profession, even assuming that they have the intellectual ability to do so. I am satisfied that there are special disadvantages in advancement in life suffered by indigenous Australians. Neither is it to the point to liken the benefits to be offered by this Trust to the giving of unnecessary luxuries to persons suffering from poverty. Whilst, at one level, assisting persons to become practising barristers may be seen by some as a luxury, I see it as the grant of assistance to persons to take a place in the world which the ability of the person would warrant but which might be denied without the assistance provided in order to overcome economic and social disadvantage.

23. This conclusion is consistent with the approach in a series of earlier decisions relating to indigenous persons, albeit in varying contexts:
Re Mathew [1951] VLR 226 at 232;
Re Bryning [1976] VR 100 at 101-102;
Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197 at 211-212;

ATC 5069

Council Inc
v Commr of Taxes (NT) 90 ATC 4352 at 4357-4358; (1990) 99 FLR 363 at 369-371 (although cf
Commr of Taxes (NT) v Tangentyere Council Inc 92 ATC 4313; (1992) 107 FLR 470); and Alice Springs Town Council v Mpweteyerre Aboriginal Corporation at 252-254. In my opinion, the objects of the Trust are benevolent.

24. So far as the requirement that the applicant be an ``institution'' is concerned, it was submitted for the respondent that the carrying out by the Trustees of the functions and duties conferred and imposed upon them by the Trust does not confer upon them the quality of an ``institution'' (per Stephen, Gibbs and Mason JJ in
Commissioner of Land Tax (NSW) v Joyce (1974) 132 CLR 22 at 32; see also
The Trustees of the Allport Bequest v FC of T 88 ATC 4436 at 4441; and
Stratton v Simpson (1970) 125 CLR 138).

25. Counsel for the Trust accepts that an institution connotes something more than a mere trust, and submits that it is a legal undertaking formed to implement and carry out the benevolent purposes and activities and, as such, is an instrument designed for carrying the benevolent purpose into effect. Reference is made to the following passage from Lord Macnaghten in
Mayor of Manchester v McAdam [1896] AC 500 at 511, where ``institution'' was described as:

``... an undertaking formed to promote some defined purpose... It is the body (so to speak) called into existence to translate the purpose as conceived in the mind of the founders into a living and active principle. Sometimes the word is used to denote merely the local habitation or the headquarters of the institution. Sometimes it comprehends everything that goes to make up the institution - everything belonging to the undertaking in connection with the purpose which informs and animates the whole.''

(See also
Incorporated Council of Law Reporting of State of (Queensland) v FC of T 71 ATC 4206 at 4212; (1971) 125 CLR 659 at 671 per Windeyer J). An institution need not be incorporated (
Christian Enterprises Ltd v Commissioner of Land Tax [1968] 88 WN (Pt 1) 112 at 119). It is submitted that the Trust is the public embodiment of the Bar Association's confirmed intention to do something about relieving the plight of indigenous law students and graduates who, because of the socio- economic disadvantages suffered by that section of the community of which they are members, cannot fulfil a calling to the Bar without assistance. It is submitted that, viewed in this way, the Trust is an institution in the same sense that the Barristers Benevolent Fund, which affords assistance to indigent barristers, is an institution.

26. This is a difficult question, because of the slipperiness of the concept involved. Once it is accepted that an institution need not be a body corporate, and need not be restricted to bricks and mortar, it assumes a metaphysical character. In Mayor of Manchester v McAdam Lord Herschell said (at 507-508):

``It may be well to consider, first, what is the meaning of the word `institutions' as used in the section. It is a word employed to express several different ideas. It is sometimes used in a sense in which the `institution' cannot be said to consist of any persons, or body of persons, who could, strictly speaking, own property. The essential idea conveyed by it in connection with such adjectives as `literary' and `scientific' is often no more than a system, scheme or arrangement, by which literature or science is promoted without reference to the persons with whom the management may rest, or in whom the property appropriated for these purposes may be vested, save in so far as these may be regarded as a part of such system, scheme or arrangement. That is certainly a well- recognised meaning of the word. One of the definitions contained in the Imperial Dictionary is as follows: `A system, plan, or society, established either by law, or by the authority of individuals, for promoting any object, public or social.' An illustration of this use is to be found in the Libraries Act itself. When the libraries which the authorities referred to in that Act may provide are termed `institutions' the term conveys the idea of buildings stored with books, with access to them by the public for the purpose of reading, together with the arrangements made for their use. Another illustration is seen in the Act of the 17 & 18 Vict. c. 112, the object of which is to give greater facilities for procuring sites and buildings `for institutions established for the promotion of literature, science, or the fine

ATC 5070

arts.' And it is, I think, in the sense I have indicated that the word is used in the enactment under consideration. What, then, is meant when the property of `such an institution' is spoken of? No more than this, I think, that it is property appropriated to and applied for its purposes. It is not open to doubt that institutions in connection with which there is no incorporated body in whom property can vest are within the scope of the enactment. In the case of an institution of this description, any building appropriated exclusively for its use must be vested in individuals as trustees; but these trustees are certainly not the institution, nor are the individuals who manage it.''

27. In
Young Men's Christian Association of Melbourne v FC of T (1926) 37 CLR 351 Higgins J said (at 360-361):

``It has not been argued for the Commissioner that this Association is not an `institution' within the meaning of the Act. The meaning numbered 7 in the Oxford Dictionary applies: `An establishment, organization, or association, instituted for the promotion of some object, esp one of public or general utility, religious, charitable, educational, &c, eg a church, school, college, hospital, asylum, reformatory, mission, or the like; as a literary and philosophical institution, a deaf and dumb institution, the Royal National Life-boat Institution,' &c. It is true that the name is often popularly applied to the building, appropriated to the work of a benevolent or educational institution; but this is rather a transferred sense. The existence of a distinctive building is not, I think, essential to the word `institution'.''

28. In
Minister of National Revenue v Trusts & Guarantee Co [1940] AC 138 an amount was settled upon trustees, and after a period the whole fund, with accumulations, was to be paid to the municipal council for a particular town to be used by the council for the benefit of the aged and deserving poor of the town in such manner and without restriction of any kind as shall be deemed prudent by the council. The question was exemption from tax of a ``charitable institution'' according to the Canadian statute. At 149-150 the Privy Council said:

``In view of the construction put by the majority of the Supreme Court upon s 11 sub-s 2, of the Act it was not necessary for them to express any opinion upon the question whether the respondents could succeed upon the ground that the income in question was exempted from taxation as being income of a charitable institution, or upon the question whether interest was properly chargeable upon the tax prior to the date of assessment. Kerwin J, however, dealt with both of these questions, and decided both of them adversely to the respondents. In their Lordships' opinion he was right in so doing.

As to the first of these questions, it would appear from the judgment of Maclean J that the respondents had contended before him that the respondents themselves or the municipal council of Colne, or the town of Colne, were charitable institutions. Any such contention is obviously absurd, and was very properly omitted from the argument on behalf of the respondents before this Board. It was, however, strenuously urged before their Lordships that the trust regarded as a whole was a charitable institution. That it is a charitable trust no one can doubt. But their Lordships are unable to agree that it is a charitable institution such as is contemplated by s 4(e) of the Act. It is by no means easy to give a definition of the word `institution' that will cover every use of it. Its meaning must always depend upon the context in which it is found. It seems plain, for instance, from the context in which it is found in the sub- section in question that the word is intended to connote something more than a mere trust. Had the Dominion Legislature intended to exempt from taxation the income of every charitable trust, nothing would have been easier than to say so. In view of the language that has in fact been used, it seems to their Lordships that the charitable institutions exempted are those which are institutions in the sense in which boards of trade and chambers of commerce are institutions, such, for example, as a charity organisation society, or a society for the prevention of cruelty to children. The trust with which the present appeal is concerned is an ordinary trust for charity. It can only be regarded as a charitable institution within the meaning of the sub-section if every such trust is to be so regarded, and this, in their

ATC 5071

Lordships' opinion, is impossible. An ordinary trust for charity is, indeed, only a charitable institution in the sense that a farm is an agricultural institution. It is not in that sense that the word institution is used in the sub-section.''

29. In Stratton v Simpson the Trust was to:

``... distribute the net income therefrom between institutions and bodies (except any public hospital within the meaning of the Hospital Act 1927) in respect of which at the date of my death any gift, devise bequest or legacy is exempt from duty under s 134 of the Administration Act 1903-1956...''

At the date of death of the testator s 134(1) provided as follows:

``No duty shall be payable under this Act in respect of any gift, devise, bequest, legacy, or settlement made or given to or in trust for-

  • (a) any public hospital within the meaning of the Hospitals Act, 1927;
  • (b) the maintenance of a free ward in any hospital;
  • (c) any public educational institution in the State which is wholly or in part dependent on any State grant, aid, or subsidy;
  • (d) any incorporated public body in the State the main object of which is to dispense or provide voluntary aid to indigent, aged, sick, blind, halt, deaf, dumb, or maimed persons;
  • (e) any publicly subscribed medical service or fund in the State, the main object of which is the relief of the sick, or any public medical service or fund in the State which is assisted by any Government grant or subsidy;
  • (f) any school which pursuant to the provisions of the Education Act, 1928, is included in the latest list of schools published in the Gazette that have been inspected and found efficient or have been certified to be efficient for the purposes of that Act.''

At 157-159 Gibbs J said:

``The question whether the trusts of cl 15 are in favour of institutions and bodies that are exclusively charitable is one that depends upon the proper construction of the will. An initial question that arises is whether the trustees are entitled to apply the income for the purpose mentioned in s 134(1)(b). It appears from cl 15 that the income of the residuary estate may only be applied in favour of something properly described as an `institution' or a `body', although the fact that the introductory words of cl 2, and the second part of cl 15, refer only to `institutions' suggests that the two words are used as synonyms. Further, the institution or body must have been such that a gift made in respect of it at the date of the testator's death would be exempt from duty under s 134. The words `in respect of' in cl 15 would appear to be equivalent to the words `to or in trust for' in s 134. The choice by the testator of the words `institutions and bodies' suggests at first sight that he intended to benefit only the institutions and bodies expressly so described in s 134(1)(c) and (d), but if this had been the effect of cl 15 it would have been unnecessary to except public hospitals, which are not described in s 134 as institutions or bodies. The inclusion in cl 15 of the words `except any public hospital within the meaning of the Hospital Act 1927' therefore strongly suggests that the words `institutions and bodies' are intended to refer to any establishment mentioned in s 134 which is an institution or body in the ordinary sense of those words, even though it is not there expressly so described. In its ordinary sense `institution' means `an establishment, organization, or association, instituted for the promotion of some object, especially one of public utility, religious, charitable, educational etc.' (The Shorter Oxford English Dictionary). It means, as was said in Mayor etc of Manchester v McAdam, `an undertaking formed to promote some defined purpose...' or `the body (so to speak) called into existence to translate the purpose as conceived in the mind of the founders into a living and active principle'. Although its meaning must depend on its context, it would not ordinarily connote a mere trust (cf Minister of National Revenue v Trusts and Guarantee Co Ltd). A school could appropriately be called an institution within the ordinary meaning of the word. Similarly the words `medical service or fund', if construed to mean the body set up to organize and control the service or administer the fund, could also be regarded

ATC 5072

as describing an institution. Paragraphs (c) to (f) of s 134(1) may therefore all be taken as referring to institutions or bodies which may be selected by the trustees under cl 15 to share in the distribution of the income. However I find it difficult to regard par (b) of s 134(1) as describing an institution or body; it describes a purpose, and although an institution may be formed to promote that purpose, s 134(1)(b) does not exempt a gift to the institution as such. It does not seem to me that s 134(1)(b) can properly be regarded as specifying any institution or body in respect of which a gift is exempt from duty. I conclude therefore that under cl 15 the trustees are not at liberty to distribute income to an institution or body simply because it has as one of its purposes, or its sole purpose, the maintenance of a free ward in a hospital. Of course, such an institution or body might come within par (d) or par (e) of s 134(1).''

Barwick CJ and Menzies J agreed with Gibbs J. At 144-146, Windeyer J said:

``The sense in which the word `institutions' is used in the will in cl 15 appears from the reference in the prefatory recital (cl 2) to `charitable Institutions as hereinafter mentioned'. It is said that the words of par (b) of s 134(1), `the maintenance of a free ward in any hospital', describe a purpose, not an institution. That is of course true. But every charitable trust is a trust for a purpose or purposes that are charitable, not a trust for a person or persons, although persons benefit from the fulfilment of the purpose. A body or organization which holds property upon a charitable trust and carries out the trust purposes is commonly called a charitable institution or a charity. It is really but the instrument for carrying a purpose into effect. Confusion can occur from want of remembering this, as Else-Mitchell J observed in McGarvie Smith Institute v Campbelltown Municipal Council. The word `institution' is a word of wide denotation. It is not uncommonly used in collocation with other words as here `institutions and bodies': see, for example, Smith v West Australian Trustee Executor & Agency Co Ltd. In that case Fullagar J declined to recognize any distinction between a charitable purpose and a charitable institution. It has been said that every charitable trust is not necessarily to be regarded as a charitable institution. My brother Walsh said so in the Supreme Court of New South Wales in Christian Enterprises Ltd v Commissioner of Land Tax, founding his statement upon a passage in the judgment of the Privy Council in Minister of National Revenue v Trusts and Guarantee Co Ltd as follows:

`It is by no means easy to give a definition of the word ``institution'' that will cover every use of it. Its meaning must always depend upon the context in which it is found. It seems plain, for instance, from the context in which it is found in the subsection in question that the word is intended to connote something more than a mere trust.'

The context there was such that their Lordships said that the charitable institutions in question are `those which are institutions in the sense in which boards of trade and chambers of commerce are institutions, such, for example, as a charity organization society, or a society for the prevention of cruelty to children'. The similarity of a society as last mentioned to a chamber of commerce may not be at once apparent, although the distinction there made between such institutions and `mere trusts' is clear enough. But I can see no reason why, unrestrained by context, a fund raised by public contributions and administered by trustees could not be properly called an institution. Whether or not it would be a charitable institution would, of course, depend upon the trusts on which it was held. Funds raised for the relief of distress caused by bushfires or other disasters are well known. If the object to which the fund must be devoted is the continuing advancement of charity in the legal sense, it is a charitable institution. The Gowrie Scholarship Trust Fund and the Winston Churchill Memorial Trust come to my mind as examples. I do not think that the absence of the word `institution' in s 134(1)(b) means that the objects to which the income of the testator's residuary estate can be devoted do not include a fund established for the maintenance of a free ward in a hospital. I do not suggest that the trustees could themselves set up a trust for that purpose. Their power is to distribute the trust income to existing institutions.''

ATC 5073

Walsh J said (at 154-155):

``The word `institutions' is flexible in its meaning and has to be considered in its context. (See Minister of National Revenue v Trusts and Guarantee Co Ltd.) I think it is a possible view that if a fund had been established for the maintenance of a free ward in a hospital a gift to or in trust for that fund might be described as a gift to an `institution'. The question whether or not that would be a proper description might depend upon the manner in which and the terms upon which the fund had been established. In referring in cl 15 to `institutions and bodies' and also to `the said Institutions' the testator has not been precise in his use of language. I am not sure that it can be asserted confidently that simply as a matter of construction of the will the trustees must necessarily exclude from consideration par (b) of s 134(1).''

30. In Commissioner of Land Tax (NSW) v Joyce exemption from land tax was granted in relation to:

``land owned by or in trust for a charitable or educational institution if the institution, however formed or constituted, is carried on solely for charitable or educational purposes and not for pecuniary profit.''

Certain land used for the purposes of a Christian sect was owned by trustees under a trust deed whereby the property was declared to be held ``upon trust to employ it for any charitable purpose or purposes which trustees may from time to time in their absolute discretion elect'' and whereby the declarants expressed a wish that the primary charitable purpose to which the trust property should be devoted should a meeting place for religious purposes for Christians. Menzies J said (at 28):

``Land is exempt from tax under the former provision if it is owned by or held in trust for a charitable institution. The land both at Ashfield and at Burwood is owned by the respondents as trustees but it seems so obvious as to require no discussion that the respondents themselves are not a charitable institution. They are individuals holding as trustees for charitable purposes. The land is not owned by a charitable institution. If then the land or part of it is exempt from tax under s 10(1)(d) it must be because the trustees hold the land or some part of it in trust for a charitable institution. The trust, however, is plainly one for charitable purposes and although there is a wish expressed by those who created the trust - ie that the primary charitable purpose to which the trust property should be devoted should be to provide a meeting place for Christians - there is no basis upon which to conclude that the land is held in trust for any institution. It is certainly not held in trust for the Brethren. In my opinion s 10(1)(d) does not exempt the land from tax.''

Stephen J said (at 31-33):

``In s 10(1)(d) two situations are contemplated; in the first the subject land will be owned by an `institution', in the second it will be held in trust for an `institution'. In the present case, the second situation is inapplicable, the terms of the trust deed already referred to prevent it from being said that the land is owned in trust for any particular institution. Accordingly the land, if it is to fall within this exemption, must be capable of being regarded as owned by an institution. In fact the only owners of the land are the four trustees; are they, then, such an institution as is described by the sub-section, an institution `formed or constituted' and capable of being `carried on' for certain purposes? It is not the verbal infelicities involved in these two phrases when sought to be applied to the trustees that principally influence me to answer `No' to this question. Rather it is because the evidence, when examined, establishes to my satisfaction that the respondents are no more than simple trustees and possess no quality or function which could justify their being described as an institution. These four trustees are in no sense the governing body of the religious sect known as the Brethren or of any congregation of that sect. Among the Brethren there is no clergy but there are elders, members of a congregation with great experience and thought to possess particular moral worth. There are also Levites, those to preach the Gospel, journeying to meet with and speak to other congregations of the Brethren. There are also members who are authorized to celebrate marriages conducted in accordance with the beliefs of the Brethren, it being a recognized denomination for the purposes of the Marriage Act 1961 (Cth). There is no evidence that any of the four trustees holds

ATC 5074

any of these offices, if they may be so described, in any congregation of the Brethren: even if they did, it is clear that no group of elders or Levites controls the affairs either of the Brethren at large or of any single congregation of Brethren. On the contrary, all decisions are taken by the particular congregation as a whole, `the group itself is the governing body', and all decisions are unanimous, unanimity being attained by discussion and moral persuasion, the Scriptures and their interpretation by four venerated teachers over the past 150 years providing the answers to such questions as arise for decision.

In such circumstances the search for anything answering the description of an institution is not likely to be rewarding, certainly it is not to be found in the trustees, either individually or collectively; they do meet from time to time, make decisions and keep minutes of their proceedings but these proceedings relate exclusively to the management of the trust property and not to the general affairs of the Brethren. They have no standing in relation to the religious practices of any congregation and control neither the general funds of the Brethren in New South Wales or in Sydney nor even those of the Ashfield congregation; these latter are deposited to the credit of a joint account in the names of three or four other members of the Brethren who attend to their proper expenditure.

The trustees' only function is the management of the trust property consistently with the Trust Deed and with the wish it expresses that the trust property should primarily be devoted to providing a meeting place for Christians. The performance of this function cannot, in my view, confer upon these four trustees the quality of an `institution', however widely that term may be construed.

In Stratton v Simpson Gibbs J said of the word `institution' that, although its meaning must depend on its context, it would not ordinarily connote a mere trust; his Honour referred to Minister of National Revenue v Trusts and Guarantee Co Ltd. Here the context appears to me very much to reinforce the ordinary connotation of the word as not extending to a mere trust; par (d) recognizes that the institutions of which it speaks may either themselves own property or else may have property held upon trust for them by trustees; it thus distinguishes between the institution and the trustees of property held upon trust for it or its charitable purposes. It legislates in terms of the owner of land, legal or equitable, and requires that owner to be an institution carried on for particular purposes; where no trustees are interposed between the legal title to the land and the institution it is the legal owner of the land which must be an institution having those purposes; where the intervention of trustees occurs the paragraph looks beyond them to the institution for which the land is held upon trust and is in no way concerned with the characteristics of those trustees.

In the present case the only relevant owners of land are the four respondents who are trustees of a charitable trust but are not themselves an institution and there exists no other landowning entity to look to in order to satisfy the characteristics of an institution for which the paragraph calls.

It may be noted that the meanings assigned to `institution' by Lord Esher MR in Mayor etc of Manchester v McAdam and, on appeal, by Lord Herschell, are in my view inapplicable to these trustees and the same may be said of the meaning of that word adopted by Higgins J in Young Men's Christian Association v FC of T.

For these reasons I consider that s 10(1)(g)(d) has no application to any of the subject lands.''

Gibbs J and Mason J agreed with Stephen J in this respect. (See also Trustees of the Allport Bequest.)

31. In my opinion, a body cannot be a public benevolent institution unless it can be identified as carrying on activities or providing services relevant to the benevolent purpose. In my view, a trust fund administered by trustees who provide money in order that services provided by others can be availed of is not an institution in this sense. For this reason, in my opinion, the Trust is not a public benevolent institution. That conclusion is reinforced by the presence in s 30-45 of items 4.1.2 and 4.1.3, each of which distinguishes a fund from a public benevolent institution.

ATC 5075

32. The alternative argument for the Trust is that it answers the description in 4.1.3. The respondent accepts that the Trust is a fund within the meaning of that item, but submits:

  • (a) that the applicant has not demonstrated that the Trust is a ``public fund'';
  • (b) that the circumstances which the Trust is intended to deal with are not limited to ``necessitous circumstances''; and
  • (c) that the Trust is not limited to the relief of persons in necessitous circumstances.

33. In relation to the meaning of ``public'', counsel for the respondent relied upon passages in
Bray v FC of T 78 ATC 4179 at 4181; (1977-1978) 140 CLR 560 at 564 per Barwick CJ at ATC 4182; CLR 567, per Mason J at ATC 4187; CLR 575-576, per Jacobs J (Stephen J agreeing) at ATC 4182; CLR 566, and per Aickin J at ATC 4190; CLR 580. These passages required public participation in making contributions. It was then submitted that the Trust deed does not contain a provision which identifies those who may contribute, that it was not at all clear that there would in fact be donations from members of the public, and that the members of the Bar Association or a similar group of persons would not be a sufficient number to constitute a section of the public.

34. Counsel for the Trust said that the evidence established that contributions would be sought from a wider group connected with the law than simply members of the New South Wales Bar Association, and that the Trust deed contains no inhibition upon accepting contributions from whence they might come. It was also submitted that, in any event, members of the New South Wales Bar Association would be a sufficient section of the public to qualify. There is no inhibition upon membership of the Bar Association or admission to the Bar beyond statutory qualification. The Trust is nothing like the private cause of a taxpayer. In my opinion, the submissions for the Trust are sound and it has the necessary public character.

35. In relation to ``necessitous circum- stances'', counsel for the respondent relied upon the decision of Kitto J in
Ballarat Trustees Executors & Agency Co Ltd v FC of T (1950) 80 CLR 350 and referred to passages at 353:

``It was contended at one stage of the argument for the appellant that the expression `necessitous circumstances' in the sub-section includes any circumstances of need, such as the need for hospital attention, and is not confined to circumstances of financial necessity. In my opinion so wide a construction of the expression should not be adopted, having regard to ordinary usage, the context in which the words appear and the history of the sub-section. I construe the expression as referring to circumstances characterized by some degree of financial necessity.''

and at 355:

``The expression `necessitous circumstances' is not defined by the Act, nor has it been judicially interpreted in its present or a comparable context. It does not admit of definition in terms so precise as to provide a yardstick for the determination of every case which may arise. Yet it is an expression which is familiar in common speech, not as limited to cases of abject penury, but as conveying the notion which the Oxford Dictionary endeavours to express as `having little or nothing to support oneself by; poor, needy, hard up.' None of these words or phrases can be selected as by itself precisely defining the expression. `There are degrees of poverty less acute than abject poverty or destitution, but poverty nevertheless': Lemm v FC of T per Williams J; and `necessitous circumstances' refers in my opinion to some degree of poverty. `In such matters one must often be guided to a great degree by one's own experience in the use of terms': Perpetual Trustee Co Ltd v FC of T per Dixon J. Approaching the matter in that way, I should say that a person is in necessitous circumstances if his financial resources are insufficient to enable him to obtain all that is necessary, not only for a bare existence, but for a modest standard of living in the Australian community. Such an attempted explanation of the expression is perhaps hardly less vague than the expression itself; but it serves to bring out what I think is important in this case, namely, that s 8(5) refers to inability to afford what may fairly be regarded as necessities for persons living in Australia, as distinguished from things which are merely desirable advantages.''

36. In that case the Trust was to pay a sum of money to a named hospital, to be invested and the income to be used to provide free accommodation at the hospital to persons who,

ATC 5076

in the opinion of the Board of Management, were deserving people who were unable to pay any fees or such fees as private patients in the hospital were usually required to pay. It was held (at 355) that:

``... I should not be prepared to apply the expression `in necessitous circumstances' to that class of persons in Australia who enjoy a modestly comfortable existence and yet are unable to afford hospital treatment at a cost equal to the fees charged at St Andrew's. There is a considerable margin between necessitous circumstances and affluence, and in my opinion within that margin fall many cases of inability to afford as much for hospital treatment as a privately-conducted hospital like St Andrew's has to charge under modern conditions, even though not carried on for profit.''

37. It is submitted on behalf of the respondent that obtaining admission to the Bar and establishing oneself in business as a barrister is unquestionably a desirable advantage but is not a ``necessity''. While some persons who are in necessitous circumstances might benefit, the scope of the activities of the Trust is not confined to those persons and the Trustees are not bound to grant assistance only or even principally to those in necessitous circumstances.

38. The related argument that the Trust is not for the relief of persons in Australia who are in necessitous circumstances depends on much the same reasoning. The provision of legal qualification and assistance in establishment in practice at the Bar, it is submitted, go well beyond the relief of financial necessity.

39. It is submitted for the Trust that according to cl 3 of the deed the basic purpose is expressly confined to the relief of poverty, suffering, helplessness, misfortune or other disability, and that all else is conditioned upon that. It is submitted that the only relief which the Trust provides is relief by way of the payment of money so that the circumstances for which relief is provided are those where recipients are unable to afford the item in question. While the particular items in cl 4 for which the Trust makes provision include items which might not ordinarily be regarded as necessities, they have to be regarded in context. They are the means by which the needy or disadvantaged person in question can be enabled to earn a living which would otherwise be denied to him or her and so are appropriately regarded as relieving necessitous circumstances. It is submitted that it is not necessary that the express terms make provision for the relief only of persons in necessitous circumstances if it is plainly implicit that this is the object of the gift (
Union Trustee Co of Australia Ltd v FC of T (1962) 108 CLR 451 at 456;
Downing v FC of T 71 ATC 4164 at 4166; (1971) 125 CLR 185 at 193).

40. Reliance is placed by counsel for the Trust on statements by Menzies J in
Ryland v FC of T 73 ATC 4107 at 4113; (1973) 128 CLR 404 at 414-415, which favour taking a broad general and beneficial view of sections such as that in issue here. As Barwick CJ put it in that case at ATC 4111; CLR 411:

``... Charity being involved, generosity rather than pedantry is called for in the construction of the section.''

(See also
FC of T v Top of the Cross Pty Ltd 81 ATC 4563; (1981) 37 ALR 623 per Bowen CJ and Ellicott J at ATC 4571; ALR 633; and per Sheppard J in
Plessey Australia Pty Limited v FC of T 89 ATC 5163 at 5168; (1989) 89 ALR 395 at 400). I think that approach is appropriate.

41. If the question were free from authority, I would favour the view that ``necessitous circumstances'' are not limited to poverty in any narrow sense, but would be broad enough to include a need for money and material assistance to meet demands arising from misfortune or disadvantage of one sort or another, consistently with what I have held in relation to the notion of benevolence. The question is whether counsel for the respondent is correct in submitting that the decision of Kitto J in Ballarat Trustees Executors & Agency Co Ltd compels a different view. That decision has stood for over fifty years. I do not think that as a single judge of this Court I would be free to depart from the ratio decidendi of it. The gist of the decision was that persons in modest, but adequate, circumstances who could not afford to pay the fees asked by a non- government (and private, in that sense) hospital were not in necessitous circumstances. As a general proposition that can be accepted, notwithstanding some progression in social welfare thinking since 1950. It, however, says little, if anything, about the individuals who form a section of the public which, by and

ATC 5077

large, suffers material disadvantage for social and economic reasons. Indigenous persons who may be benefited will, of necessity, have reached an educational standard and have had an educational potential in advance of many non-indigenous persons in the Australian population. In my opinion, that does not mean that such an indigenous person would not need money and material assistance in order to achieve entry to a profession which would otherwise be denied to that person because of the particular disadvantages suffered by indigenous persons. Furthermore, the evidence establishes that very few indigenous persons of university graduate age would be other than necessitous no matter how that is judged, regardless of the extent of his or her education. Very few would be in the position spoken of by Kitto J as enjoying a modestly comfortable existence. An indigenous person who did have substantial means would not qualify for assistance from the Trust which is, after all, the provision of money. ``Necessitous circumstances'' is not a term of art or a defined term, and it is not confined to the relief of poverty in the strict sense. The description ``poverty, suffering, helplessness, misfortune or other disability of indigenous persons'' in the deed is apt to describe those in necessitous circumstances. In my opinion, for present purposes, that phrase, in the particular context of s 30-45, connotes something similar to that which might be the object of benevolence in item 4.1.1, and I do not repeat what I said on that topic earlier. It would be reasonable to assume that Parliament intended that the funds, authorities or institutions described in the table at s 30-45 setting out general categories of welfare recipients would be aimed at the same general kind of welfare. Items 4.1.1 and 4.1.2 are plainly consistent, and, in my opinion, 4.1.3 is another mechanism for achieving the same objective, and should be construed consistently with them in this respect.

42. There is a question as to whether the kinds of expenditure contemplated could be described as for the relief of necessity, even broadly construed. It again needs to be borne in mind that the question is not whether the purposes of the Trust are charitable, as being for purposes beneficial to the community. If that were the question, there is little doubt that it would qualify. The issue is the relief of individuals in necessitous circumstances. Counsel for the respondent adopted by analogy the example given in City of Hawthorn v Victorian Welfare Association at 208 of a gift to supply destitute persons with free air travel to the South Pole and back. This would benefit the individual but would not relieve necessity.

43. In my opinion, this is a false analogy. An indigenous person with virtually no assets and with all the social disadvantages shown by the evidence needs help in order to break free of the poverty trap. The mere fact that the person has shown academic ability and some perseverance above the norm for indigenous persons does not mean that the person does not need help to take his or her rightful place in the world. The pitifully small number of indigenous persons who have practised at the Bar to date is testament to the extent of the need. Practising a profession or calling in this day and age is not a luxury like a recreational overseas trip. It cannot be assumed that indigenous persons of the requisite academic ability with a bent to practise law will break out of poverty or need if not assisted to practise law. There is no evidence that such persons will succeed in the medium or long term in other occupations without assistance. Economic, social and cultural barriers exist to successful participation in commercial or administrative life at any level by such persons. In my opinion, the Trust is a public fund established and maintained for the relief of persons in Australia who are in necessitous circumstances.

44. It follows that the application should succeed. The Objection Decision should be set aside, the objection should be allowed and the Trust endorsed as a deductible gift recipient pursuant to s 30-125 of the Act. The respondent should pay the applicant's costs of the proceedings. Although no point has been taken, it seems to me that the proper applicants should be named trustees rather than the Trust and the proceeding should be amended accordingly. The matter will be adjourned to enable the applicant to bring in minutes of order to give effect to these reasons.


The matter is stood over to allow the applicant to bring in short minutes of order to give effect to these reasons.

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