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Melkman v. Federal Commissioner of Taxation

Members:
Davies J
Lockhart J
Gummow J

Tribunal:
Full Federal Court

Decision date: Judgment handed down 8 July 1988.

Davies, Lockhart and Gummow JJ.

Introduction

This is an appeal from a decision from a single Judge of this Court (Fox J.) dismissing an appeal brought on questions of law pursuant to sec. 44 of the Administrative Appeals Tribunal Act 1975 [reported at 87 ATC 4855]. The appellant is the widow and executrix of the estate of Nico Melkman who died in January 1985. She seeks to have treated as exempt income under the Income Tax Assessment Act 1936 (``the Assessment Act'') a pension paid to her late husband by the Government of the Kingdom of the Netherlands pursuant to a law of that country entitled Benefit Payments to Victims of Persecution 1940-1945 (``the Benefits Act'').

On 10 March 1981, the respondent (``the Commissioner'') disallowed an objection against the treatment as assessable income of the pension received by Mr Melkman in respect of the year of income ended 30 June 1978. Assessments were made also in relation to the years of income ended 30 June 1977, 1979, 1980, 1981 and 1982. These five assessments raised the same issues as the assessment in relation to the year of income ended 30 June 1978. All these assessments were the subject of requests for review by the Administrative Appeals Tribunal (``the Tribunal''). The respondent was successful before the Tribunal, and, as we have indicated, before his Honour.

We refer first to the facts found by the Tribunal [reported as Case U31,
87 ATC 237]. Mr Melkman was born in the Netherlands in 1922. He was a Dutch national; he had four Jewish grandparents and regarded himself as, and was regarded by others as, a Jew. When the German armed forces invaded and occupied the Netherlands in 1940, he became subject to the restrictions imposed on Jews and later he was arrested. At that time he was engaged to be married to the woman who is now his widow.

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Mrs Melkman gave evidence before the Tribunal of her husband's possible connection with the Underground and that she believed her husband's arrest came in the course of his clandestine activities in circulating an Underground newspaper. In September 1942, Mr Melkman was placed in a concentration camp. The evidence before the Tribunal included his written account of his privations and vicissitudes in the following years. He survived the ordeal. After several years' service in the Dutch Navy, he and his wife settled in Australia.

From the late 1940s, Mr Melkman suffered from epilepsy. This was accepted by his medical advisers as having been occasioned by head injuries suffered in a concentration camp. From the mid-1950s he supported his family by working as a kitchen hand in a public hospital. Although qualified for higher duties, his health was not good enough to enable him to secure advancement and to hold that advancement. By September 1976, he was mentally unfit to continue work and his condition was attributable to the atrocities he had observed and the injuries he had suffered during the captivity that had commenced in 1942.

The appellant's case was put on two bases before us.

Section 23(kc) of the Assessment Act and sec. 10 of the Racial Discrimination Act

The appellant relied upon sec. 23(kc) of the Assessment Act in conjunction with sec. 10 of the Racial Discrimination Act 1975 (``the Racial Discrimination Act'').

Section 23(kc) of the Assessment Act provides:

  • 23 The following income shall be exempt from income tax:
    • ...
    • (kc) pensions, annuities and allowances paid as or by way of compensation by a State of the Federal Republic of Germany under the laws of that Republic relating to compensation of victims of National Socialist persecution;...

As we have observed, the pension in question in these proceedings was paid by the Government of the Kingdom of the Netherlands and not by any State of the Federal Republic of Germany. Section 23(kc) identifies certain legislation in force in the Federal Republic of Germany. The law in question in the present proceedings is that entitled (in translation) Federal Compensation for Victims of National-Socialist Persecution Amendment Act 1953. This law confers an entitlement to compensation on persons who were persecuted during the period 30 January 1933 to 8 May 1945 by National Socialist acts of violence because of their political conviction of opposition to National Socialism, their race, creed or religious belief and who thus suffered damage to life, body, health, liberty, property, assets or to their professional or economic advancement. The persons upon whom is conferred an entitlement to compensation under the law of the Federal Republic are described in terms which include (but are not limited to) those who died, emigrated, were deported or expelled before 1 January 1947, and had (in translation) their ``last native residence'' or permanent residence in the geographic area of Germany in which the law of the Federal Republic is expressed to operate. The expression ``last native residence'' was treated in these proceedings as identifying German national origin.

Subsections (1) and (2) of sec. 10 of the Racial Discrimination Act are as follows:

  • 10(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
  • 10(2) A reference in sub-section (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention

Subsection 3(1) of the Racial Discrimination Act provides that in the Act, unless the contrary intention appears:

  • ``Convention'' means the International Convention on the Elimination of All Forms of Racial Discrimination that was opened

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    for signature on 21 December 1965 and entered into force on 2 January 1969, being the Convention a copy of the English text of which is set out in the Schedule.

Article 1 of the Convention includes the following:

  • 1.1 In this Convention, the term ``racial discrimination'' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
  • 1.2 This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
  • 1.3 Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

Article 2 provides that the States Parties condemn racial discrimination. They undertake to pursue a policy of eliminating racial discrimination in all its forms. Article 5 is in the following terms, so far as is relevant to the case put by the appellant:

  • 5. In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
    • ...
    • (d) Other civil rights, in particular:
      • ...
      • (v) The right to own property alone as well as in association with others;
      • ...
    • (e) Economic, social and cultural rights, in particular:
      • ...
      • (iv) The right to public health, medical care, social security and social services;...

The appellant submitted that, by reason of sec. 23(kc) of the Assessment Act, and within the meaning of subsec. 10(1) of the Racial Discrimination Act, persons of a particular national origin (i.e. persons such as the appellant who are not of German origin) do not enjoy rights that are enjoyed by persons of another national origin (that is to say German origin) or their enjoyment of such rights is limited. As the submission proceeded, the denial of an exempt character to the income derived by Mr Melkman led (i) to his failure to enjoy several rights within the meaning of subsec. 10(1) of the Racial Discrimination Act, namely the right to own property and the right to public health, medical care, social security and social services, or (ii) to the curtailment of those rights. The appellant's submission was that, by force of subsec. 10(1) of the Racial Discrimination Act, and notwithstanding anything in the Assessment Act, persons such as Mr Melkman shall enjoy those rights to the same extent as persons of German national origin. The result is, according to the appellant, that the payments of the pension in question are exempt income.

Whatever the difficulties with interpretation of sec. 10 of the Racial Discrimination Act, we are of the opinion that this provision does not have the operation for which the appellant contended in this case.

Section 10 of the Racial Discrimination Act is a provision both of importance and some complexity. We have set out the text of Art. 1.1 of the Convention which contains a definition of the term ``racial discrimination'', but it may be noted that the term ``racial discrimination'' does not appear in sec. 10 of the Racial Discrimination Act. In
Gerhardy v. Brown (1985) 159 C.L.R. 70 at p. 99, Mason J. (as he then was) said:

``Section 10 makes no reference to racial discrimination; nor does it make any reference, as s. 9(1) does, to the elements of the definition of `racial discrimination' in Art. 1.1 of the Convention. Instead s. 10 is

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expressed to operate where persons of a particular race, colour or origin do not enjoy a right that is enjoyed by persons of another race, colour or origin, or do not enjoy that right to the same extent. Some question as to the validity of s. 10 might be thought to arise because it fails to follow the language of Art. 2 of the Convention. The exclusion of persons of a race, colour or origin from the enjoyment of a relevant right by reason of a law does not necessarily involve `racial discrimination' in that it may not amount to a distinction, exclusion, restriction or preference `which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise' of the right `on an equal footing'. Consequently, s. 10 should be read in the light of the Convention as a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination.''

We draw particular attention to the last sentence in this extract from his Honour's judgment.

In the same judgment, Mason J. pointed out (supra at pp. 99, 101-102) that (a) in any event, the Convention does not concern itself with the precise content of any particular right or freedom, and (b) as a concept, human rights and freedoms are fundamentally different from specific or special rights as generally understood in our law and as enforced in our courts in actions between individuals or between individuals and governments. Gibbs C.J. (supra at p. 86) also observed that the Convention is not concerned with rights that are purely private.

Consistently with what was said by Mason J. in Gerhardy v. Brown (supra at pp. 99-100), it is necessary for the appellant to establish both that the prejudice of which complaint is made arises by reason of statutory provisions (i.e. sec. 23(kc) of the Assessment Act) whose purpose or effect is to create racial discrimination, and also that that prejudice amounts to an exclusion from [or] an impairment of a human right or fundamental freedom, or a right of a kind referred to in Art. 5 of the Convention.

The appellant has identified the right or rights in respect of which the alleged discrimination occurs; as we have observed, the appellant points to para. (d)(v) and (e)(iv) of Art. 5 of the Convention, that is to say, to the right to own property and to the right to public health, medical care, social security and social services. But what is the content of those rights? In Gerhardy v. Brown (supra at p. 102), Mason J. characterised the concept of freedom of movement as extending, generally speaking, to movement without impediment throughout the State concerned, but subject to compliance with regulations legitimately made in the public interest, such as traffic laws and subject to the private and property rights of others. Likewise, in our view, the content of the rights on which the taxpayer relies in this case would not ordinarily be understood as conferring or requiring freedom or immunity from the operation of any law which provided for the imposition and collection of taxes where the purpose or effect of that law was not to create racial discrimination.

Were it not for sec. 23(kc) of the Assessment Act, subsec. 25(1) of that Act would bring in, as assessable income, both the receipt of the deceased's pension and the receipt of any pension which satisfied the description in sec. 23(kc). Considered at that stage, none of the relevant provisions of the Assessment Act would have the character of a law ``whose purpose or effect [was] to create racial discrimination'' within the sense of the passage we have quoted from the judgment of Mason J. in Gerhardy v. Brown.

Section 23(kc) of the Assessment Act confers an exemption upon income which satisfies a particular description. That description defines the exemption by reference to the character of the income (namely, pensions, annuities and allowances), the source of the income (a State of the Federal Republic of Germany) and the character of the law of the State by which the payment is made (as a law relating to compensation of victims of National Socialist persecution).

These criteria do not take as their points of reference the race, colour, descent or national or ethnic origin of the taxpayer, and do not have as their purpose or effect the creation of racial discrimination. This is so even though a German law that answers one of the criteria for the operation of sec. 23(kc) (viz. the 1953 law which we have described) is so drawn that (i) not all persons who were subjected to National Socialist persecution necessarily will qualify

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for a pension under that law, and (ii) one of the classes of beneficiaries under the law is defined by reference to German nationality. Neither the purpose nor the effect of sec. 23(kc) of the Assessment Act is to discriminate between taxpayers in receipt of income by way of pension, annuity and allowances on grounds going to race, colour or national or ethnic origin. The provision applies to persons within its sphere of application uniformly, regardless of their race, colour descent or national or ethnic origin; cf.
Conroy v. Carter (1968) 118 C.L.R. 90 at pp. 100-101;
Fulcher v. Hilt (1985) 61 A.L.R. 359 at p. 367.

As we have earlier stated, we believe that the content of the rights on which the taxpayer relies in this case would not ordinarily be understood as conferring or requiring any freedom or immunity from the operation of taxation laws of the character we have described. The operation of those laws would not amount to an exclusion from enjoyment of the human rights or fundamental freedoms relied on by the appellant in this case.

Accordingly, we reject the submission that the pension received by the late Mr Melkman from the Dutch Government is to be treated as if it had been exempt income by virtue of sec. 23(kc) of the Assessment Act operating in conjunction with sec. 10 of the Racial Discrimination Act. It should be noted, in this context, that the introduction of sec. 23(kca) into the Assessment Act by sec. 4(1) of the Income Tax Assessment Amendment Act (No. 4) 1982, Act No. 76 of 1982, which applies to pensions derived on or after 3 March 1982, allows a specific exemption for pensions of the kind received by the appellant in so far as entitlements under the pension were derived on or after that date.

Paragraph 23AD(3)(c) of the Assessment Act

We turn now to consider the other basis of the case for exemption.

It was argued on behalf of the appellant that the payments of pension made to Mr Melkman by the Netherlands Government under the Benefits Act were exempt from Australian income tax on the ground that they were payments of the kind referred to in para. 23AD(3)(c) of the Assessment Act. Subsection 23AD(3) provides, in its form prior to amendments pursuant to sec. 5(1) of the Taxation Laws Amendment Act (No. 4) 1985, Act No. 173 of 1985:

``(3) The following payments are exempt from income tax:

  • (a) payments (other than excepted payments) of pensions and attendants' allowances, and payments (other than excepted payments) of a like nature, made under the Repatriation Act 1920-1973, the Repatriation (Far East Strategic Reserve) Act 1956-1973, the Repatriation (Special Overseas Service) Act 1962-1973 or the Seamen's War Pensions and Allowances Act 1940-1973;
  • (b) payments of pensions and allowances, and other payments, made by the Government of Australia or the Government of the United Kingdom of Great Britain and Northern Ireland, being payments that, in the opinion of the Commissioner, are of a similar nature to payments (other than excepted payments) referred to in paragraph (a);
  • (c) payments of wounds and disability pensions of the kinds specified in subsection 365(2) of the Imperial Act known as the Income and Corporation Taxes Act 1970, other than payments that, in the opinion of the Commissioner, are of a similar nature to excepted payments; and
  • (d) payments (other than excepted payments) by way of -
    • (i) pension, allowance, endowment or benefit under the Social Services Act 1947-1973;
    • (ii) allowance under the Tuberculosis Act 1948; and
    • (iii) domiciliary nursing care benefit under Division 5B of Part V of the National Health Act 1953-1973.''

The expression ``excepted payment'' has the meaning given it in subsec. 23AD(1). Nothing turns for the purpose of the present proceedings upon that definition, the position being that if the pension in question otherwise falls within the description in para. 23AD(3)(c), it does not, on any basis, fall within any of the exceptions.

Paragraph 23AD(3)(c) refers to subsec. 365(2) of the Imperial Act known as the

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Income and Corporation Taxes Act 1970. Section 365 provides:

``(1) Income from wounds and disability pensions to which this subsection applies shall be exempt from income tax and shall not be reckoned in computing income for any of the purposes of the Income Tax Acts.

(2) Subsection (1) above applies to -

  • (a) wounds pensions granted to members of the naval, military and air forces of the Crown,
  • (b) retired pay of disabled officers granted on account of medical unfitness attributable to or aggravated by naval, military or air-force service,
  • (c) disablement or disability pensions granted to members other than commissioned officers of the naval, military or air forces of the Crown on account of medical unfitness attributable to or aggravated by naval, military or air-force service,
  • (d) disablement pensions granted to persons who have been employed in the nursing services of any of the naval, military or air forces of the Crown on account of medical unfitness attributable to or aggravated by naval, military or air-force service, and
  • (e) injury and disablement pensions payable under any scheme made under the Injuries in War (Compensation) Act 1914, the Injuries in War (Compensation) Act 1914 (Session 2), and the Injuries in War (Compensation) Act 1915, or under any War Risks Compensation Scheme for the Mercantile Marine:

Provided that, where the amount of any such retired pay or pension to which subsection (1) above applies is not solely attributable to disablement or disability, the relief conferred by the said subsection (1) shall extend only to such part as is certified by the Secretary of State for Social Services, after consultation with the appropriate Government Department, to be attributable to disablement or disability.''

It was argued on behalf of the appellant that para. (e) applies to the pension in question. It was not argued that any other paragraph of subsec. 365(2) applied.

The first question which arises centres on the meaning and application of the words ``of the kinds'' appearing in para. (c) of subsec. 23AD(3) of the Assessment Act. The comparison to be made is between the particular pension which Mr Melkman received and the kinds of pension specified in subsec. 365(2) of the Income and Corporation Taxes Act 1970 (Imp.).

In
Goodfellow v. F.C. of T. 76 ATC 4199 the Supreme Court of New South Wales, Administrative Law Division (Sheppard J.), said at p. 4211 that para. 23(kab) of the Assessment Act in its then form (which in all respects was of the same effect as para. 23AD(3)(c)) did not embrace only pensions exempt from English income tax under the Imperial Act, but also other wounds and disability pensions of the same kind payable from sources outside the United Kingdom. On appeal to the High Court, 77 ATC 4086; (1977) 51 A.L.J.R. 437, Jacobs J. expressed agreement at ATC p. 4087; A.L.J.R. p. 438 with the reasons of Sheppard J. on this point. Jacobs J. said that he was content to adopt his Honour's reasons on the point, but took a different view on the question whether the pension of the appellant in that case answered the description of a pension of the kind specified in sec. 380(2) of the Income Tax Act 1952 (Imp.). Barwick C.J. and Aickin J., who were the other two members of the High Court in Goodfellow's case, expressed no views on this question.

The question has also come before Income Tax Boards of Review in Australia and the reasons of the members of the Boards reflect divergent views: see Case N45,
81 ATC 220; Case P29,
82 ATC 136; Case T2,
86 ATC 107; and Case U66,
87 ATC 424. The question was considered by Spender J. in
F.C. of T. v. Verzyden 88 ATC 4205 at pp. 4209-4210, now on appeal to a Full Court of this Court.

At one end of the scale it is said that para. 23AD(3)(c) exempts only the pensions particularised in subsec. 365(2) of the Income and Corporation Taxes Act 1970. This view gives an effect to the words ``of the kinds specified in'' similar to that given to the words ``of a kind specified in'' in sec. 30 of the Compensation (Commonwealth Government

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Employees) Act 1971 (Cth) and reg. 12 of the Compensation (Commonwealth Government Employees) Regulations by Mason C.J., Brennan and Toohey JJ. in Bird v. Commonwealth of Australia (delivered 20 May 1988). The view is also supported by the use in para. 23AD(3)(b) of the different term ``of a similar nature to''. A wider view is that the exemption extends to pensions payable by Governments other than the Government of the United Kingdom provided they answer the description ``of the Crown'' for the purposes of subsec. 365(2). At the other end of the scale it is said that the exemption extends further to include similar pensions payable by any Governments, including Governments formerly at war with the United Kingdom and Australia.

For reasons which appear later it is not necessary for us to decide this question and we think it inappropriate to do so. The question was not argued before us and only arose incidentally when raised by the Bench in the course of argument. Further, the correctness of the views expressed by Sheppard J. and by Jacobs J. in Goodfellow's case was assumed by counsel for both parties. Nor, as we said earlier, were we referred to any of the relevant Orders in Council or Royal Warrants pursuant to which schemes were made under the Acts mentioned in para. (e) of subsec. 365(2) of the Income and Corporation Taxes Act 1970.

Paragraph (e) of subsec. 365(2) of the Imperial Act refers to English Acts which we shall examine in turn. Before doing so, however, it is necessary to note that there was no material before the trial Judge or us identifying schemes framed under any of the English Acts. Whether it is possible to apply para. 23AD(3)(c) without reference to the schemes themselves is open to question; but we shall approach the case on the assumption that this is possible because, for reasons which appear later, the pension payable to the deceased could not fall within the description of any of the pensions mentioned in any of the English Acts specified in para. (e) and a fortiori could not fall within the description of pensions payable under any of the schemes made thereunder. We leave open the correctness of this assumption.

The first Act mentioned in para. (e) is the Injuries in War (Compensation) Act 1914 which authorises His Majesty by Order in Council to ``frame a scheme as to the pension and grants, and other allowances in the nature thereof, to be paid'' to certain persons ``in respect of injuries suffered by them whilst employed afloat... in connexion with warlike operations in which His Majesty is engaged, and in case of their death to widows and other dependants''.

The pension paid under the Benefits Act to Mr Melkman was not similar to those payable under the terms of the Injuries in War (Compensation) Act 1914. The evidence does not establish that Mr Melkman was employed in connection with warlike operations or that the pension was payable to him by reason of his employment in connection with warlike operations. There is some evidence in the form of the belief of the appellant, his widow, of his ``possible connection with the Underground''. The trial Judge rejected the submission that Mr Melkman, whilst living in Europe and having been persecuted by the authorities in the Netherlands, including being sent to concentration camps because he was possibly engaged in ``clandestine activities in circulating an Underground newspaper'', should be treated in some way as a person covered by the legislation in question. The trial Judge was, in our opinion, correct in his conclusion that the disability which affected Mr Melkman was not incurred whilst he was engaged ``in connexion with warlike operations'' and that he did not receive the pension on that ground. In any case, the disability which affected Mr Melkman was not incurred in circumstances connected with any employment afloat so as to fall within the terms of the Injuries in War (Compensation) Act 1914.

The second Act mentioned in para. 365(2)(e) is the War Compensation Act 1914 (Session 2). This Act also provides for the framing of schemes as to pensions, grants and other allowances in the nature thereof to be paid to certain persons ``whilst employed on shore out of the United Kingdom... in connection with warlike operations in which His Majesty is engaged, and, in the case of their death, to their widows or other dependants''. For the reasons expressed above, we agree with the conclusion of the trial Judge that the disability which affected Mr Melkman was not incurred ``whilst employed... in connection with warlike operations'' nor was the pension granted for that cause.

The third Act mentioned in para. 365(2)(e) is the Injuries in War (Compensation) Act 1915

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which was not relied on in argument. The short title to that Act reads:

``An Act to provide for the grant of pensions and other allowances to certain persons in respect of disablement due to causes arising out of the operations of the present war, whilst they are employed afloat in connexion with the telegraph and postal services, and to their dependants, and for purposes connected therewith.''

Plainly the pension payable to Mr Melkman does not fall within that description.

There remains the ``War Risks Compensation Scheme for the Mercantile Marine''. It was common ground before the trial Judge and this Full Court that this Scheme applies to members of the mercantile marine serving on British ships and that the Scheme is not relevant for present purposes.

On no view of the facts of this case or of the law could the pension paid to Mr Melkman answer the description of a disability pension ``of the kinds'' specified in para. (e) of subsec. 365(2) of the Income and Corporation Taxes Act 1970. The schemes mentioned in para. (e) refer to English Acts which select as their criteria for entitlement to pensions the suffering of injuries either whilst employed ``in connexion with warlike operations'' whether afloat or on shore, or whilst employed afloat ``in connexion with the telegraph and postal services''. The pension payable to Mr Melkman by the Netherlands Government was paid pursuant to the Benefits Act which provided for payments of pensions to persecuted persons who, because of sickness or disability occasioned or aggravated by or in connection with their persecution by the ``occupying enemy forces'' on the ground of ``race, belief or world view'' are unable to earn income equal to the amount calculated under a specified formula. The criteria selected by the Benefits Act for entitlement to payment of benefits thereunder have no relation to the criteria selected in the English Acts mentioned in para. (e) of sec. 365 of the Imperial Act to which reference has already been made. We leave aside the fact that the pension was paid to Mr Melkman by the Government of the Kingdom of the Netherlands and not the Government of the United Kingdom or of any other member of the British Commonwealth. Notwithstanding that there may be some degree of elasticity in the meaning of the phrase ``of the kinds'' it cannot be stretched to render comparable in any relevant way pensions paid under the Benefits Act to the pensions mentioned in para. (e) of sec. 365 of the Imperial Act.

In the result the pension paid to Mr Melkman is not exempt from income tax under para. 23AD(3)(c) of the Assessment Act.

The appeal should be dismissed. Counsel for the respondent informed us that, if the appeal should be dismissed, the respondent did not seek an order for costs. Hence there shall be no order as to the costs of the appeal.


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