CENTRAL BAYSIDE DIVISION OF GENERAL PRACTICE LTD v COMMISSIONER OF STATE REVENUE (VIC)

Members: Gleeson CJ

Kirby J
Callinan J
Heydon J
Crennan J

Tribunal:
Full High Court

MEDIA NEUTRAL CITATION: [2006] HCA 43

Decision date: 31 August 2006

Kirby J

50. This appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria [29] Central Bayside Division of General Practice Ltd v Commissioner of State Revenue (2005) 60 ATR 151 ; [ 2005 ] ATC 4586 . presents a question as to the meaning of an exemption for a " charitable body " in State revenue law.

51. Central Bayside General Practice Association Limited ( " the appellant " ) claims that it is a " charitable body " , and thus entitled to the exemption. The Commissioner of State Revenue (Vict) ( " the Commissioner " ) (the respondent to this appeal) contests the appellant ' s entitlement. So far, the Commissioner ' s conclusion has been upheld by the Victorian Civil and Administrative Tribunal ( " the Tribunal " ) [30] Decision of the Victorian Civil and Administrative Tribunal (Taxation Division), G Gibson, Member, 22 November 2002 ( “ Decision of the Tribunal ” ). ; by a single judge of the Supreme Court of Victoria (Nettle J) [31] Central Bayside Division of General Practice Ltd v Commissioner of State Revenue (2003) 53 ATR 473 ; [ 2003 ] ATC 4835 . ; and by majority decision of the Court of Appeal [32] Chernov JA, Osborn AJA; Byrne AJA dissenting. . By special leave, the appellant now seeks reversal by this Court of the order that it does not qualify for the exemption.

52. I agree in the conclusion expressed by the other members of this Court. The appellant does qualify. However, because my reasoning takes a different course, it is necessary to explain the way in which I have arrived at identical orders. In doing so, I will call attention, as others have done in the past [33] Royal National Agricultural and Industrial Association v Chester (1974) 48 ALJR 304 at 305-306; 3 ALR 486 at 488. , to unsatisfactory features of the general law on charities, which the parties to the appeal did not question, but accepted.

The facts

53. Appellant ' s activities and claim : The facts relevant to the decision in this appeal are set out in some detail by Gleeson CJ, Heydon and Crennan JJ [34] Reasons of Gleeson CJ, Heydon and Crennan JJ at [ 1 ] - [ 15 ] . , and by Callinan J [35] Reasons of Callinan J at [ 148 ] - [ 160 ] . . Their Honours ' reasons severally describe the legal character of the appellant as a not-for-profit company limited by guarantee established for specified objects, with a mission statement and goals set out in its constituting documents.

54. The membership and governance of the appellant are also described in those reasons, together with the general nature of its activities. Putting them broadly, they were to support general practitioners within the Central Bayside area of suburban Melbourne by improving their health information systems; assisting their professional development; and facilitating accreditations; improving their access to information systems; and increasing cooperation with one another, with pharmacists and with others (including in a specific project addressed to falls and falls injury prevention in frail and aged persons) [36] Reasons of Gleeson CJ, Heydon and Crennan JJ at [ 5 ] - [ 6 ] . . These activities were designed to encourage, directly or indirectly, an outreach to the local community by the general practitioners concerned; and the treatment of patients living in that community.

55. The evidence establishes that a relationship exists between the appellant and the federal Department of Health and Ageing ( " the Department " ). This feature of the appellant ' s operation has occasioned close and repeated attention by the law. As appears in the other reasons, the resulting relationship provided the overwhelming bulk of the appellant ' s income in the year of revenue in question in these proceedings [37] Amounting to approximately 93 % of all income. See reasons of Callinan J at [ 157 ] . . The income was effectively tied to purposes specifically designated by the terms of the departmental grant (Outcomes-Based Funding or " OBF grants " ); or by grants for other specifically approved purposes ( " project-based grants " ) [38] See reasons of Callinan J at [ 158 ] . Forty-three percent of total income was outcome-based funding grants. The balance of federal funding was project-based. .

56. The arrangements with the Department included requirements to submit strategic and business plans to the Department, together with regular reports on the fulfilment of the approved purposes. In addition, the appellant faced the possibility of on-site inspections by departmental officers. Such inspections were designed to ensure that the Department could be accountable for the expenditure of the federal funds directed to the appellant, and that the appellant ' s approved activities would fulfil its own programmes at the same time as they contributed towards the aggregate activities of similar " divisions of general practice " , established throughout the nation. Such divisions had begun operation in 1992 for the stated purpose of improving the delivery of general medical practice services to patients. They were established with the support of federal funding. By the time of the year of revenue, 123 such divisions had been established throughout Australia. Together they

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enjoyed a participation rate of about 80 % of general practitioners in Australia.

57. The appellant contended that it was properly to be characterised as a " charitable body " . It made this assertion by reference to the charitable objects expressed in its founding documents; the not-for-profit constitutional provisions governing its organisation; and the ongoing public benefit which it gave to patients (including to particular groups such as the old and frail, Aboriginal and Torres Strait Islanders and non-English speaking patients [39] See cl 3 of the constitution of the appellant in the reasons of Gleeson CJ, Heydon and Crennan JJ at [ 5 ] . ). For this reason, it claimed that it was entitled to exemption from the liability otherwise arising under the Pay-roll Tax Act 1971 (Vic) ( " the Act " ), to pay tax on wages paid to its employees.

58. Shifting basis of the dispute : Originally, the Commissioner rejected the appellant ' s claim for an exemption on the basis that the proper characterisation of the appellant was that of a " professional body with the aim of promoting the interests of its members " . A body so characterised would not, on a conventional approach, be classified as a " charitable body " , even though it might incidentally perform charitable activities.

59. Before the Tribunal, however, the Commissioner shifted his ground. He contested the classification of the appellant as a " charitable body " on the basis that its purposes were not exclusively charitable but amounted to services provided, in effect, as part of " an integrated … scheme of national health management presided over by the Federal Government " [40] Decision of the Tribunal at [ 25 ] . . The Tribunal, expressing misgivings, upheld this argument. Its decision survived two levels of appeal in the Supreme Court of Victoria. Those appeals were limited to a point of law. Before the Supreme Court, the Commissioner did not press his original argument that the true character of the appellant was that of a body promoting the interests of its members. Doubts about the correctness of that concession were voiced both by the primary judge [41] (2003) 53 ATR 473 at 476 [ 8 ] , 481 [ 13 ] - [ 14 ] ; [ 2003 ] ATC 4835 at 4837, 4841 . and by Chernov JA in the Court of Appeal [42] (2005) 60 ATR 151 at 153 [ 3 ] ; [ 2005 ] ATC 4586 at 4588 . . However, that issue has not been agitated before this Court.

The decisional history and common ground

60. Decisional history : The history of the proceedings is described in other reasons [43] Reasons of Gleeson CJ, Heydon and Crennan JJ at [ 16 ] - [ 20 ] ; reasons of Callinan J at [ 161 ] - [ 168 ] . . Although the Tribunal, the primary judge and the majority in the Court of Appeal severally expressed themselves in somewhat different terms, the essential reasons for rejecting the appellant ' s claim to be a " charitable body " were the same. All of the decision-makers (including Byrne AJA, who dissented in the Court of Appeal) assumed that the word " charitable " , contained in the Act, was to be given a meaning derived by analogy from the preamble to the Statute of Elizabeth (the Charitable Uses Act 1601 (UK) [44] 43 Eliz I c 4. ), as explained by Lord Macnaghten in the decision of the House of Lords in Commissioners for Special Purposes of the Income Tax v Pemsel [45] [ 1891 ] AC 531 at 581 . .

61. According to this approach, the decision-maker was required to search for the " spirit and intendment " of the Elizabethan statute [46] (2003) 53 ATR 473 at 486 [ 32 ] ; [ 2003 ] ATC 4835 at 4845 . or, as otherwise put, to ascertain whether the appellant lay within the " equity " of that statute [47] (2005) 60 ATR 151 at 160 [ 22 ] ; [ 2005 ] ATC 4586 at 4593 . . It was accepted that, ultimately, this task enlivened a question for judgment and evaluation in the circumstances of the particular case [48] Incorporated Council of Law Reporting (Q) v Federal Commissioner of Taxation (1971) 125 CLR 659 at 666 per Barwick CJ. . Upon this basis, the Tribunal, the primary judge and the majority in the Court of Appeal concluded that the appellant was not a " charitable body " . Effectively, this was because the evidence revealed that it was " too close to the Commonwealth " so that, essentially, it was carrying out federal government or legislative policy and not acting for charitable purposes [49] (2005) 60 ATR 151 at 160-161 [ 23 ] ; [ 2005 ] ATC 4586 at 4593-4594 . .

62. Upon this view of the facts, the appellant was held to be effectively responding to the " dictates " of the Department, exerted through the power of the purse [50] (2005) 60 ATR 151 at 159-160 [ 21 ] ; [ 2005 ] ATC 4586 at 4593 . . It was thus a " creature " or " agent " of the federal Government [51] (2005) 60 ATR 151 at 171 [ 61 ] per Osborn AJA; [ 2005 ] ATC 4586 at 4602 . . Whilst doubtless many of its activities and purposes were consonant with a " charitable " classification, the " body " itself could not be so characterised. In effect, it was carrying out national governmental policy. This was held to deprive it of the " charitable " character that was necessary to qualify for the exemption under the Act.

63. Common ground : I have mentioned the common ground that existed between the parties, below and in this Court, concerning the way in which the word " charitable " , appearing in the Act, was to be interpreted. This was common ground upon a matter of law. That puts it in a class different from common ground on issues of fact. I will return to this point.

64. 

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In the meantime, it is useful to take note of the common ground that also existed between the Commissioner and the appellant about the facts. The Commissioner acknowledged that the appellant was not, as such, a department or instrumentality of the federal Government. So much was plain from the relevant legislation. He accepted that the appellant ' s activities were for the benefit of the community. The Commissioner also accepted that the appellant received, and could seek, funds other than those provided by the Department. Moreover, it was not bound in law to accept those funds. It could reject them if it so decided in accordance with its constitution.

65. The Commissioner further accepted that the only means by which the Commonwealth could exert control over the appellant was through its financial power. However, he submitted that this was sufficient. The extremely high reliance placed on federal funds (which constituted almost the entirety of the appellant ' s income); and the subjection of the appellant to approval, monitoring and potential intervention, all added up to effective control in practical terms. That fact was supported by the existence of a large, integrated national scheme, within which the appellant formed only one of many units pursuing an overall objective orchestrated by the Department. Upon this view, it was not necessary for the Department to appoint representatives to the appellant ' s board so as to control it. The appellant ' s pursuit of federally approved projects was assured by the fact that any deviation would be sanctioned by the unwelcome reduction, or withdrawal, of federal funds.

66. These are the arguments that convinced the Tribunal and the courts below. However, into the exotic consideration of a statute enacted by the Parliament of England in the reign of the first Queen Elizabeth, I must now intrude the practical realities of the statute applicable to this appeal, enacted by the Parliament of Victoria in the reign of the second Queen Elizabeth.

The legislation

67. The courts below gave virtually no attention to the detail of the legislation in question in this case. Neither did the written arguments of the parties or initial oral arguments before this Court. That legislation was enacted by the Parliament of Victoria in 1971. Its purpose was to impose a general obligation to pay payroll tax upon " wages " , subject to State regulation. Section 10 of the Act affords an " exemption from pay-roll tax " , as follows:

  • " (1) The wages liable to pay-roll tax under this Act do not include wages paid or payable -
    • (a) by the Governor of a State;
    • (b) by a religious institution to a person during a period in respect of which the institution satisfies the Commissioner that the person is engaged exclusively in religious work of the religious institution;
    • (ba) by a public benevolent institution to a person during a period in respect of which the institution satisfies the Commissioner that the person is engaged exclusively in work of the institution of a public benevolent nature;
    • (bb) by a charitable body (other than a school or educational institution or an instrumentality of the State) to a person during a period in respect of which the body satisfies the Commissioner that the person is engaged exclusively in work of the body of a charitable nature;
    • (bc) by a public hospital to a person during a period in respect of which the hospital satisfies the Commissioner that the person is engaged exclusively in work of the hospital of a kind ordinarily performed in connexion with the conduct of public hospitals " .

68. There follow further exemptions extending to particular cases of great specificity. There is an exemption for certain private hospitals (par (c)); certain schools, colleges and school councils (pars (d), (da), (daa) and (db)); specified municipal councils (save for wages paid for activities of identified profit-making kinds) (par (e)); consular and like staff (par (f)); United Nations agency staff (par (g)); the Commonwealth War Graves Commission (par (h)); the Australian-American Educational Foundation (par (i)); defence personnel or employers employing such personnel whilst on leave (par (j)); and defined

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corporations acting in connection with municipal councils (par (l)).

69. As is evident from the foregoing list, the category of exemption claimed by the appellant was added to the Act after its original enactment. In so far as the specific reference to a " charitable body " grants an exemption, it expressly excludes schools and educational institutions or instrumentalities of the State. In order to qualify for an exemption, such bodies have to attract one of the other specific paragraphs and satisfy their terms.

70. According to the Pemsel test, " ' [ c ] harity ' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads " [52] Pemsel [ 1891 ] AC 531 at 583. . However, the drafter of s 10(1) of the Act was not content to leave " charitable bodies " , defined in such general terms, to do the entire work of exemption. Indeed, the notion of " charitable body " was not originally expressed in the Act at all. Depending on the particular circumstances, several of the expressed categories of exemption might come within the charitable notions of " relief of poverty " , " advancement of education " and even (in s 10(1)(b) of the Act) " the advancement of religion " . Many, in a general sense, would be for " purposes beneficial to the community not falling under any of the preceding heads " . Yet the Parliament of Victoria took no chances. As can be observed, s 10(1) includes a collection of highly particular categories and institutions which, in aggregate, seem to owe more to political bargaining and compromise than to a semi-coherent scheme of the kind that Pemsel was endeavouring to sustain.

The issues

71. As I approach this appeal, four issues require consideration:

72. Excluded issues : There are three further issues that should be mentioned at this stage, although I will put them out of account as issues in the proceedings.

73. First, no constitutional or federal statutory issue was raised by either party. For example, no attempt was made by the appellant to suggest that an endeavour by the Parliament of Victoria to impose payroll tax on the wages of employees of a body that was performing functions authorised by or under federal law was inconsistent with the commands of such federal law, and thus, invalid for constitutional reasons [54] Constitution, s 109. . Any such submission would have been inconsistent with the appellant ' s endeavour to distance itself from the Commonwealth and the Department so as to avoid the suggested disqualification. It is therefore safe to put this issue to one side.

74. Secondly, I can also put aside the concerns expressed in the courts below about the Commissioner needlessly abandoning his initial argument that the true character of the appellant was that of a professional association, established for the benefit of its members, and only incidentally or secondarily a body with purposes and activities of a charitable character, for the general public or a substantial section thereof. That issue was not reopened in this Court. I am content to disregard it even though it appears far from unarguable.

75. Thirdly, the Commissioner did attempt to invoke, in support of his submissions, a number of cases arising under the " public benevolent institution " exemption which appears in s 10(1)(ba) of the Act. In so far as the cases cited have any relevance to the issue before this Court, I do not regard them as helpful, save in so far as they demonstrate the importance of construing the contested phrase in its own statutory context. I agree, on this point, with what is said in other reasons [55] Reasons of Gleeson CJ, Heydon and Crennan JJ at [ 46 ] - [ 47 ] ; reasons of Callinan J at [ 180 ] - [ 181 ] . . The cases are distinguishable. The four issues that I have identified remain to be addressed.

The primacy of the statute

76. Implausible issue or judicial obligation? In their joint reasons, Gleeson CJ, Heydon and Crennan JJ have suggested that " [ i ] t is not easy to see a basis upon which [ the Pemsel rule could be questioned ] with any degree of plausibility " [56] Reasons of Gleeson CJ, Heydon and Crennan JJ, fn 6. . I do not agree with this opinion. Ultimately, my disagreement rests on a view of the Constitution, of the role of the Judicature it creates, and specifically of the functions of this Court.

77. A fundamental assumption of the Constitution of the Commonwealth is maintenance of the rule of law [57] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513 [ 103 ] . . Inherent in that obligation is the notion that courts, disposing of matters within the Judicature, will give effect to the commands of the several legislatures of the States and the Commonwealth, as expressed in the statutes which they enact, or in the subordinate laws which they thereby authorise. The Act in question in this case is such a statute. Its validity has not been questioned. On its face, it is valid and applicable. This Court must therefore give effect to it. It must do so according to its terms.

78. This Court has no authority to ignore or neglect a meaning of legislation which the Parliament intended. Whilst respect is paid to the issues which the parties define, it is ultimately not for the parties to make " concessions " concerning the content of the law. No court can accept, and act upon, an incorrect understanding of the law. Nor can parties expect that judges will simply go along unquestioningly with an erroneous understanding of the law, particularly where these understandings arise because they have not been questioned by the parties [58] cf Roberts v Bass (2002) 212 CLR 1 at 54 [ 143 ] . .

79. As averted to earlier, the position differs when a court is considering matters of fact , as opposed to matters of law . If the parties agree on the state of the facts, it would ordinarily work a procedural unfairness for a court to ignore the parties ' agreement and to proceed to decide facts in a manner contrary to the way in which the case has been litigated [59] Coulton v Holcombe (1986) 162 CLR 1 at 7-9. .

80. However, no such procedural impediment arises when the court is faced with issues of law. The judicial duty to the law is paramount. Any potential procedural unfairness arising from a different view of the law can be overcome by raising the matter for argument and affording the parties the opportunity to put their submissions. This was certainly done when this appeal reached this Court. The concern that I felt about the assumed meaning of the phrase " charitable body " in s 10(1)(bb)

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of the Act was squarely identified. It involves the discharge by this Court of its constitutional function of disposing of the appeal according to law. If judges do not question doubtful assumptions about the law they will just go on, sheep like, repeating legal mistakes inherited from past generations. There have been many advances in the approach to the interpretation of legislation adopted by this Court in recent years. A nation ' s final court, as I conceive it, must be willing to test past legal assumptions and to correct error if it is demonstrated by the course of proceedings.

81. Statutory primacy : The present appeal is, in fact, a clear instance of an error in approach to legal analysis which is relatively common and which this Court, over the past decade, has been at pains to correct.

82. I made this point in Brodie v Singleton Shire Council [60] (2001) 206 CLR 512 at 602 [ 231 ] . :

" [ T ] he duty of a court is to the law. If a valid statute is enacted with relevant effect, that duty extends to giving effect to the statute, not ignoring it. No principle of the common law can retain its authority in the face of a legislative prescription that enters its orbit with relevant effect. The proper starting point for the ascertainment of the legal duties … is the statute. "

83. In the same year, in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) [61] (2001) 207 CLR 72 . , Gaudron, Gummow, Hayne and Callinan JJ insisted that the inquiry presented by the issues in that appeal " must begin with the relevant statutory provisions " [62] (2001) 207 CLR 72 at 77 [ 9 ] . . I agreed, and remarked [63] (2001) 207 CLR 72 at 89 [ 46 ] (footnote omitted). :

" The arguments in a number of recent appeals demonstrate a tendency to give priority to judicial exposition of legislation over analysis of what the legislation actually provides. It is as if the legal mind finds it more congenial to apply the law as stated by judges rather than the law as stated by a legislature. This tendency must be resisted, as must the related tendency, when construing our own legislation, to look to English judicial authority on English legislation, sometimes enacted more than a century ago. "

These remarks gain added force when the judicial exposition in question is one that was uttered more than a century ago in England, in relation to a statute enacted more than four centuries ago.

84. Time and time again, this Court has reinforced the foregoing instruction. It is self-evident, but apparently it needs to be restated. Where the law in issue is expressed in the form of an Act of an Australian legislature, it is in the words of that statute that the content of the legal obligation is to be found, not in judicial synonyms, restatements or approximations. Upon this matter, this Court has until now spoken with a single voice [64] Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 526 [ 11 ] , 545 [ 63 ] ; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 37-39 [ 11 ] - [ 15 ] , 111-112 [ 249 ] ; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 266 [ 159 ] , 269 [ 164 ] ; Conway v The Queen (2002) 209 CLR 203 at 227 [ 65 ] ; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 542-544 [ 143 ] - [ 148 ] ; Western Australia v Ward (2002) 213 CLR 1 at 60 [ 2 ] , 66 [ 16 ] , 69 [ 25 ] , 249-250 [ 588 ] ; Wilson v Anderson (2002) 213 CLR 401 at 430 [ 47 ] , 459-460 [ 144 ] - [ 146 ] ; Joslyn v Berryman (2003) 214 CLR 552 at 595-596 [ 137 ] ; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at 359 [ 127 ] ; Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1 at 6-7 [ 7 ] - [ 9 ] ; Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109 at 138 [ 87 ] ; Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at 167-168 [ 90 ] - [ 94 ] ; Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592 at 649-650 [ 181 ] ; R v Lavender (2005) 222 CLR 67 at 101-102 [ 107 ] ; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 79 ALJR 1850 at 1856 [ 30 ] ; 221 ALR 448 at 455; Travel Compensation Fund v Tambree t/as R Tambree and Associates (2005) 80 ALJR 183 at 195 [ 54 ] ; 222 ALR 263 at 277; Combet v Commonwealth (2005) 80 ALJR 247 at 280 [ 135 ] ; 221 ALR 621 at 660; Neindorf v Junkovic (2005) 80 ALJR 341 at 350-351 [ 42 ] ; 222 ALR 631 at 641; Weiss v The Queen (2005) 80 ALJR 444 at 452 [ 31 ] ; 223 ALR 662 at 671. . It should be consistent in applying the same rule to the present appeal. It is not implausible to do so. It is our legal duty.

85. Special considerations : There are a number of special considerations that reinforce the correctness of this approach in the present instance. They combine to cast doubt on the interpretation of a phrase in s 10(1)(bb) of the Act in question in this appeal by unquestioning reference to the authority of English judges (including in the Privy Council [65] Chesterman v Federal Commissioner of Taxation (1925) 37 CLR 317 reversing Chesterman v Federal Commissioner of Taxation (1923) 32 CLR 362 . See also Ashfield Municipal Council v Joyce [ 1978 ] AC 122 (PC). ), insisting that Australian legislative texts, making reference to " charity " or " charitable " , should be interpreted in accordance with the approach stated by the House of Lords in Pemsel .

86. First, the words in issue appear not in a general statute concerned with the law of charities or charitable trusts at large [66] See, for example, Charities Act 1978 (Vic). . They exist in the particular context of a specific law with respect to the raising of revenue for the general purposes of the government of an Australian State and in connection with the budget process of that government.

87. Presenting the Bill that introduced par (bb) in s 10(1) of the Act, the then Treasurer explained to the Legislative Assembly of the Victorian Parliament adjustments in various State taxes, including payroll tax, alteration in the threshold at which employers would begin to pay such tax and alteration in the exemptions, including the introduction of an exemption applicable " to charitable bodies other than educational institutions, schools, government departments and public statutory bodies " [67] Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 6 November 1992 at 566, The Hon A R Stockdale MP, Treasurer, delivering the Second Reading Speech to the State Taxation (Amendment) Bill 1992 (Vic). . The Minister stated that " the urgency to commence the restoration of the State ' s finances necessitates the passage of a significant amount of legislation within a limited parliamentary session. This leaves the

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government no alternative but to adopt this compendium measure. " There was no reference before the elected representatives, either in the Minister ' s speech or in the accompanying documents, to the Statute of Elizabeth, the decision in Pemsel or the importation of their categories into the adjustments of this particular and urgent State fiscal legislation. Without explanation, it seems most unlikely that members of the Victorian Parliament would have read par (bb) as connoting a reference to Pemsel . To render the State legislature accountable to the electors, particularly in the matter of taxation, as the postulate of democratic government requires, it does not seem sufficient that parliamentary counsel might have known of Pemsel or that expert tax lawyers are aware of what it says. At the least, the postulate of democratic accountability for a law enacted by a Parliament of lay members suggests that we should question such an assumption.

88. Secondly, the text into which par (bb) was inserted already included, in several of the other paragraphs, references to exemptions which duplicate, cut across or partially cover the four categories identified in Pemsel which, it is suggested, were imported by the use of the phrase " charitable body " in the new par (bb). Inserting that phrase into a modern statute, by way of amendment, when other categories of a " charitable " character, so defined, are expressly exempted, would not appear to make sense. According to ordinary canons of statutory interpretation, it would not be assumed that par (bb) was inserted into s 10(1) as a redundancy or as a means of duplicating existing exemptions. Yet if there is imported with the reference to " charitable body " in par (bb) the " technical " or " legal " categories described in Pemsel , a significant part of the supposed purpose of the paragraph is rendered otiose because of the other express provisions in the sub-section.

89. Thirdly, the character of the exemption for payroll tax must be understood in light of the fact that such a tax, being imposed on wages, is of a recurrent nature. It falls due for consideration with each recurring payment. The word " wages " is itself very broadly defined in the Act [68] The Act, s 3. . The recurrent character of this form of taxation appears to contradict the notion of a settled and immoveable denotation for a " charitable body " that has never changed, at least in its basic categories, since Pemsel was decided by the House of Lords in 1891 and by inference long before.

90. Fourthly, it defies commonsense and ordinary intuition to suggest that the understanding by the Victorian Parliament, in the context of a 1992 amendment inserting the phrase " charitable body " in the law, would necessarily be the same as the understanding of that phrase in England when Pemsel was decided in 1891. Even more so, it seems unlikely that the phrase would have had the identical meaning in the social circumstances of England in 1601 when the preamble to the Statute of Elizabeth was drawn up. There is no reference in Pemsel or in the preamble to many considerations that might be apt to embody the meaning of a " charitable body " in contemporary Australian society. For example, there is no mention of the defence of fundamental human rights and human dignity; the maintenance of the benefits of science and technology; the protection of refugees and other vulnerable persons; the need for specific assistance for indigenous peoples; the protection of the welfare of animals; the advancement of culture, arts and heritage; the defence of the environment and so forth. To impose rigid categories derived from an English statute of the early 17th century (re-endorsed in 1891 at an historical moment when unity of the common law throughout the British Empire was thought essential) seems arguably incompatible with this Court ' s duty to adopt a purposive interpretation of legislation enacted by an Australian legislature.

91. Conclusion - consistent approaches : It follows that there is no reason, in principle, why the problem of statutory interpretation presented by the present appeal should be approached in a way different from other cases involving statutory interpretation, considered by this Court in recent times [69] See for example, Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at 262 [ 28 ] ; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 328-329 [ 22 ] . . The starting point is the statute. This includes its language but also the context of the contested phrase; the given reasons for the introduction of the particular provision; the light thrown on its meaning by surrounding provisions; the general purpose and object of the statute viewed in its time; and the constitutional context of the enactment of a law

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imposing taxation by which a State government, proposing that law, is rendered accountable to the electors.

92. There may be reasons why a court such as this might ultimately conclude that it cannot perform the function of devising a modern definition of " charitable body " , apt to the particular circumstances of the Victorian legislation in issue in this appeal. For example, that conclusion might present where the court lacks detailed assistance from the parties or the presence of a contradictor. However, in my view it is proper, in the first instance, to comply with the settled methodology of this Court in deriving the meaning of the phrase " charitable body " in the statute in question. By that methodology, the ascertainment of the meaning must begin with the legislation and with proper analysis of its text. Revenue law is part of the general law. It is subject to the same general principles governing the ascertainment of its specific parliamentary purposes [70] Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109 at 146 [ 84 ] ; cf Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459 at 477 [ 52 ] ; Federal Commissioner of Taxation v Citylink Melbourne Ltd [ 2006 ] HCA 35 , my own reasons at [ 12 ] . . It is not implausible to bring this body of law back to the general approach of the Court. Consistency in matters of general principle is a hallmark of the rule of law. Revenue and charity law are not exempt.

Occasion to reopen the meaning of " charitable "

93. Once it is accepted that the Court must give meaning to the words " charitable body " in the context of s 10(1)(bb) of the Act, in the way typical to ascertaining the meaning of Australian statutes, there are a number of reasons for breaking from a search for the " spirit and intendment " of the preamble to the Statute of Elizabeth as the criterion for answering that question [71] Pemsel [ 1891 ] AC 531 at 543. .

94. Some of the reasons have already been foreshadowed. It is unlikely that an Australian Parliament, acting without instruction and comprising ordinary citizens, would appreciate and intend that enacting a statute not specifically concerned with charitable trusts automatically imports a classification devised in England four centuries ago.

95. Least of all could this be regarded as likely if the legislators knew that, in the United Kingdom, where the statutory formula was first adopted in 1601, the Statute of Elizabeth itself was repealed by the Mortmain and Charitable Uses Act 1888 (UK) [72] 51 and 52 Vict c 42, s 13(1). , passed before the federation of the Australian colonies. Although that repeal preserved the preamble [73] By s 13(2). , which thereby remained in operation, the 1888 Act, including the preamble, was itself later repealed by the Charities Act 1960 (UK) [74] s 38. . The words of Gonthier J in the Supreme Court of Canada are equally applicable in the Australian context: " no statutory authority for the preamble now exists " [75] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 40 [ 32 ] . .

96. For judges, no longer subject to the authority of Imperial or English courts, to maintain obedience to conceptions of " charity " and " charitable bodies " , expressed in such different times, seems, on the face of things, an irrational surrender to the pull of history over contemporary understandings of language used in a modern Australian statute.

97. Further, much criticism has been directed towards the continued use of the categories established by the Statute of Elizabeth, and reasoning by analogy from the preamble to that statute. In 1966, several Australian reports reviewed the law relating to charitable trusts [76] In 1966, the Chief Justice ’ s Law Reform Committee of Victoria in its report on Charitable Trusts , (1962-1966) had recommended in par [ 32 ] that no attempt be made to enact a statutory definition of “ charity ” . Queensland Law Reform Commission, Trust, Trustees, Settled Land and Charities , Report No 8, (1971); Law Reform Commission of Tasmania, Unclaimed Charitable Funds , Report No 3, (1975); Victorian Legal and Constitutional Committee, Report to the Parliament on the Law Relating to Charitable Trusts , (1989); and Law Reform Commission of Tasmania, Variations of Charitable Trusts , Report No 38, (1984). . No substantive change ensued. However, in 2000 a federal inquiry was established into the legal definition of " charity " . This resulted in the Report of the Inquiry into the Definition of Charities and Related Organisations , (2001). The report concluded that, although use of the preamble to the Statute of Elizabeth had been " valuable " , it had " now outlived its usefulness " . The report declared that the process of determining " whether a purpose is within the ' spirit and intendment ' of the Preamble or is analogous to a charitable purpose is ambiguous and could lead to inconsistencies " . The report further noted that removal of reference to the Statute of Elizabeth had been recommended in England by reports delivered in 1952 and 1976 [77] The Nathan Report , (1952); the Goodman Report , (1976). See also Chesterman, Charities, Trusts and Social Welfare , (1979) at 403-404. and that this Court, in 1974, had referred to the possible need for reform [78] Royal National Agricultural and Industrial Association v Chester (1974) 48 ALJR 304 at 306; 3 ALR 486 at 489. . A detailed statutory definition was proposed for Australian federal purposes, including for revenue purposes. However, after a process of consultation undertaken by the Board of Taxation, the ensuing federal Act [79] Extension of Charitable Purpose Act 2004 (Cth). effected only relatively modest and special amendments to the previous law [80] Concerning provision of child care services on a non-profit basis (s 4(1)); open self-help groups (s 5(1)(a)); and closed and contemplative religious orders that regularly undertake “ prayerful intervention ” at the request of members of the public (s 5(1)(b)). .

98. In England, following earlier reports recommending changes to the law, an inquiry in 2002 recommended a new approach to the

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meaning of " charitable " , with a fresh definition of " charity " including several features missing from the approaches adopted in earlier centuries. A Bill to implement the report for England and Wales is before the United Kingdom Parliament. A separate inquiry into the issue has been undertaken in Scotland [81] See Kemp Report , (1997) by the Scottish Council for Voluntary Organisations and Scottish Charity Law Review Committee Report , (2001). .

99. In Canada the defects of the Pemsel categories were noted by the majority of the Supreme Court in the Immigrant and Visible Minority Women case [82] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 106 [ 149 ] . . That case concerned the entitlement to registration as an organisation with " charitable " status under the Income Tax Act 1985 (Can). The body was established for the purpose of assisting immigrant and visible minority women to obtain employment.

100. The majority of the Supreme Court rejected the Society ' s appeal against the Minister ' s refusal of its application. However, they noted " repeated calls for the expansion or replacement of the test to reflect more completely the standards and values of modern Canadian society " . They endorsed remarks of Strayer JA in Human Life International in Canada Inc v MNR [83] [ 1998 ] 3 FC 202 at 214 [ 8 ] . to the effect that the definition of charity remains " an area crying out for clarification through Canadian legislation for the guidance of taxpayers, administrators, and the courts " . The majority in the Supreme Court observed that " [ i ] n the absence of legislative reform, Canadian courts must contend with the difficulty of articulating how the law of charities is to keep ' moving ' in a manner that is consistent with the nature of the common law " [84] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 107 [ 150 ] . . The minority in the Supreme Court accepted the need for such movement as axiomatic [85] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 91 [ 125 ] per Gonthier J. .

101. One paper, cited in the Supreme Court [86] [ 1999 ] 1 SCR 10 at 51 [ 50 ] . , by Mr E B Bromley, a Canadian expert on the law of charities, remarked [87] Bromley, “ Contemporary Philanthropy — Is the Legal Concept of ‘ Charity ’ Any Longer Adequate? ” , in Waters (ed), Equity, Fiduciaries and Trusts , (1993) 59 at 65-66. :

" The time has come … to redefine radically the legal parameters of what is charitable by simply breaking with Lord Macnaghten ' s four heads and articulating a restatement of the law as it is in practice today rather than tortuously trying to fit everything into the categories set out in Pemsel. In an ironic fashion, such a radical restatement of current reality without undue allegiance to existing case law would be more consistent with Lord Macnaghten ' s judgment than simply repeating and adhering to his four categorisations. "

To like effect, Professor David Duff called for a reformulation that would lay emphasis on public benefit; uphold social and cultural pluralism; and " reject the political purposes doctrine " [88] Duff, “ Tax Treatment of Charitable Contributions in Canada: Theory, Practice, and Reform ” , (2004) 42 Osgoode Hall Law Journal 47 at 68. .

102. A further reflection of the perceived inadequacies of the Pemsel approach was the recent adoption in New Zealand of the Charities Act 2005 (NZ). Although this enactment appears to preserve the use of the traditional four heads of charity expressed in Pemsel [89] Charities Act 2005 (NZ), s 5(1). , it introduces reforms designed to protect special Maori charities and to forestall invalidation of a " charity " by the inclusion amongst its purposes of ancillary non-charitable purposes (including, for example, advocacy) [90] Charities Act 2005 (NZ), s 5(3). .

103. Not all countries of the common law world have continued to adhere to Pemsel . In India, although the influence of Pemsel may still be seen in revenue legislation [91] Municipal Corporation of Delhi v Children Book Trust AIR 1992 SC 1456 . , local cultural concepts appear to have been accepted and grafted onto the old law [92] CIT v FICC AIR 1981 SC 1408 at 1414-1415 per Venkataramiah J. .

104. A wrong turning? In 1923, in Chesterman v Federal Commissioner of Taxation [93] (1923) 32 CLR 362 . See also Swinburne v Federal Commissioner of Taxation (1920) 27 CLR 377 at 384. , this Court was asked to give meaning to s 8(5) of the Estate Duty Assessment Act 1914 (Cth). That sub-section exempted bequests and gifts " for religious, scientific, charitable or public educational purposes " .

105. A majority of the Court (Isaacs, Rich and Starke JJ; Knox CJ and Higgins J dissenting) rejected the submission that " charitable purposes " was to be read in a " technical legal sense " . Isaacs J pointed to the " non-technical interpretation " of " charitable purposes " that had been adopted in a decision of the English Court of Appeal published only eight months after the decision in Pemsel [94] (1923) 32 CLR 362 at 382 citing Commissioner of Inland Revenue v Scott (1892) 2 QB 152 at 165. . His Honour was strongly influenced by the context and language of the Australian legislation in issue. So was Starke J who, in language similar to that used above, pointed to the need to construe each statute " by itself for the purpose of ascertaining its meaning " and to have regard to any other exemptions which would " cover a large number of ' charities ' in the strict legal sense " [95] (1923) 32 CLR 362 at 399. . The reasons of Rich J were to like effect [96] (1923) 32 CLR 362 at 397-398. . There had been earlier Australian decisions in which local judges had endeavoured to be faithful to what they took to

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be the particular purposes of the Australian statutory text as enacted by Australian legislators [97] See, eg, Trustees of Queen ’ s College v Mayor & c of Melbourne [ 1905 ] VLR 247 at 255, noted in Ashfield Municipal Council v Joyce [ 1978 ] AC 122 at 139. .

106. These entirely orthodox approaches, attentive both to legal principle and to local conditions, were overruled when Chesterman reached the Privy Council [98] Chesterman (1925) 37 CLR 317 ; [ 1926 ] AC 128 . . That Court insisted on obedience to the " legal meaning expressed by Lord Macnaghten in Pemsel ' s Case " [99] (1925) 37 CLR 317 ; [ 1926 ] AC 128 at 131. . Fifty years later, the same approach was restated in a Privy Council decision from the Court of Appeal of New South Wales [100] Joyce [ 1978 ] AC 122 at 136-139; cf Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159 at 174-175, adhering to Pemsel . .

107. It was natural, in a legal environment in which this Court ' s decisions were subject to appeal to the Privy Council, that obedience to the Pemsel rule would continue, virtually unquestioned. But since that supervision has ceased [101] Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth); Australia Act 1986 (Cth), s 11(1). , this Court is free to reach its own conclusions. It may, if it chooses, return to its own earlier authority in Chesterman . That authority is, after all, more respectful to the purposes discerned from the particular legislation and to the ordinary principles governing the construction of statutes that give primacy to the parliamentary words over judicial authority.

108. The foregoing reasons therefore provide a sound basis for reopening the meaning of " charitable body " in the present appeal. The issue is not immaterial to the outcome of this appeal given that, upon one view, a narrower, popular meaning for the word " charitable " , understood in its ordinary sense, would exclude the appellant, especially if the phrase " charitable body " is interpreted in a revenue statute which imposes a general tax and permits exemptions only in specified and very particular circumstances.

109. In light of the criticism that has been directed at Pemsel , both in Australia and in other common law countries, it is by no means self-evident that Pemsel provides the starting point for defining the word " charitable " .

Reasons for adhering to Pemsel

110. Had this Court ' s decision in Chesterman not been overruled by the Privy Council in 1925, it is possible that a more satisfactory approach to the meaning of " charity " and " charitable " would have been fashioned in Australian courts and legislation over the years. In the event, a new kind of judicial mortmain was imposed on the law of charities, relevant to the content of federal and State legislation in Australia. Although, as I have shown, there are reasons that would support, even now, an attempt to fashion a new principle for application to the Act of the Victorian Parliament in question in this appeal, for the reasons which follow, I have concluded that such an attempt should not be made.

111. First, it is by no means clear that the Victorian Parliament intended in this case to depart from the definition supplied by Pemsel . Recent amendments in the Australian federal context and in New Zealand have proved extremely limited. This may demonstrate the complexity and controversy of bolder reforms. Alternatively, it may reinforce a conclusion that the present law is not considered sufficiently anomalous, inefficient or unjust as to require general statutory intervention. If, as a result of the outcome of these proceedings, the Commissioner or the Government and Parliament of Victoria are disturbed, it will be open to them to seek and adopt a further amendment to the Act. The many amendments enacted, and the highly particular provisions appearing there, indicate that such amendments can easily be made where the political will exists. In effect, this constitutes the best answer available to the suggestion that the " technical " or " legal " definition of " charitable " is prone to mislead the elected representatives and Parliament when approving a law raising taxes from the people.

112. Secondly, the one indisputably correct statement that Lord Macnaghten made in Pemsel was that " no one as yet has succeeded in defining the popular meaning of the word ' charity " ' [102] Pemsel [ 1891 ] AC 531 at 583. . At least, no one has succeeded in providing a definition that enjoys universal acceptance. To reconceptualise the notion of charity and to apply it to the phrase " charitable body " in the Act, would desirably require assistance from the parties; a study of much comparative material; and close analysis of such material. In a case where neither the parties nor the Commonwealth intervening, was willing to undertake that task, I am not convinced that this Court, unaided, should attempt to do so on its own.

113. Thirdly, the issue of whether the Privy Council ' s decision in Chesterman should be reversed was carefully re-examined by that

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Court in Joyce . Lord Wilberforce, who could not be described as a narrow or parochial legalist, took pains to refer to many decisions of this Court, and other Australian courts, which, once the Rubicon of Chesterman was crossed, had faithfully followed the Pemsel approach [103] Joyce [ 1978 ] AC 122 at 136-139. . He offered several reasons of legal principle and policy for adhering to the old approach. He did not confine himself to a demand for unquestioning adherence to judicial authority.

114. Fourthly, a judicial re-expression would have wide-ranging implications, affecting the legal affairs of many persons, ordered on the assumption of adherence to the Pemsel approach. One of the reasons of policy advanced in Joyce (also mentioned in this appeal by Gleeson CJ, Heydon and Crennan JJ [104] Reasons of Gleeson CJ, Heydon and Crennan JJ, fn 6, referring to considerations of convenience. ) is that numerous charitable bodies have organised their affairs to bring themselves within the technical or legal definition, so as to secure the advantage of the exemption [105] A list of organisations that have qualified for the exemption can be found in Joyce [ 1978 ] AC 122 at 139. . The Pemsel approach has also been applied beyond the context of revenue law. In light of these considerations, in a case such as this, judges should submit to the constraints of authority [106] Young Men ’ s Christian Association of Sydney (1954) 20 LGR (NSW) 35 per Sugerman J noted in Joyce [ 1978 ] AC 122 at 139. , even where they have serious doubts about the correctness of that authority.

115. Fifthly, in the one instance in which a final appellate court has been invited to review the approach in Pemsel , and to substitute a more modern and local judicial definition, the Supreme Court of Canada declined to accept the invitation. In the Immigrant and Visible Minority Women case [107] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 . , the majority [108] Iacobucci J (Cory, Major and Bastarache JJ concurring). accepted the appellant ' s criticism of the Pemsel categories and approach. However, they concluded that, for the Court to attempt a re-expression of the law, having so many applications of great variety, would go beyond the proper judicial function to re-express the general law [109] [ 1999 ] 1 SCR 10 at 107 [ 150 ] applying R v Salituro [ 1991 ] 3 SCR 654 at 670. . Given the ramifications, the majority considered that any such re-expression should be left to Parliament.

116. Sixthly, the existing categories already afford a broad scope for a modern or liberal interpretation of " charity " , a point acknowledged by a minority of the Supreme Court of Canada in the Immigrant and Visible Minority Women case [110] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 59 [ 81 ] per Gonthier J (L ’ Heureux-Dub é and McLachlin JJ concurring). . Whilst not disagreeing with the majority ' s criticisms of Pemsel , the minority concluded that, especially in the fourth stated category ( " trusts for other purposes beneficial to the community, not falling under any of the preceding heads " ), and in the technique of reasoning by analogy from the categories collected in the preamble to the Statute of Elizabeth, Pemsel , in practice, afforded a potentially broad and facultative approach to the meaning of " charity " and " charitable " [111] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 90-91 [ 124 ] - [ 125 ] . .

117. Indeed, it is arguable that Pemsel may have actually condoned adjustment and modernisation of the notion of " charity " . A return to the ordinary meaning of the word might constrict that process. Dictionary definitions tend to assign as the primary meaning of " charity " , " almsgiving; the private or public relief of unfortunate or needy persons; benevolence " [112] Macquarie Dictionary , 3rd ed (1997) at 372. . " Charitable " is primarily defined as " generous in gifts to relieve the needs of others " [113] Macquarie Dictionary , 3rd ed (1997) at 372. . If, as a matter of legal policy, it is considered that the term " charitable " , in contemporary revenue laws, should be permitted to expand so as to cover a wider range of community interests, the Pemsel approach may be more conducive to this outcome than an embrace of the demotic meaning of the statutory words. It is possible that colloquial use of the notion of " charity " has kept pace with modern community interests in the legal context in a way that dictionary definitions do not reflect. I tend to think it has. But not everyone shares this belief. Reopening the question (which many parliaments appear to have been willing to leave to the courts) might produce a more restrictive and deleterious policy outcome than is represented by persistence with the approach that Pemsel mandates [114] It is insufficient merely to show that the claimant is established for the “ public benefit ” in the ordinary sense of that term. It remains necessary for it to demonstrate how its purposes are beneficial in a way that the law regards as charitable. See D ’ Aguiar v Guyana Commissioner of Inland Revenue [ 1970 ] TR 31 at 33 (PC). .

118. Outcome - change unnecessary : For these reasons, I am content to follow past authority and to treat the reference to " charitable body " in s 10(1)(bb) of the Act as a reference to such a body defined in the Pemsel sense. I concede that this is a counter-intuitive conclusion, given the normal way in which this Court approaches the construction of language in statutes of an Australian Parliament, where the Parliament itself has not provided a special definition to authorise an artificial meaning. The result is odd and the consequential meaning of " charitable " is derived in such a very strange way that I venture to suggest that few

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citizens know of it and most lay persons, when told, would find it astonishing.

119. A return to an understanding of " charitable " in this context, according to the understanding of ordinary language, might result in a finding adverse to the appellant. But because I have concluded that this Court should adhere to past authority on the " legal " or " technical " meaning of " charitable " , that outcome is avoided. A " charitable body " , as the phrase is used in s 10(1)(bb) of the Act, is not confined to a body whose purposes and activities are concerned with gift-giving and help to " needy " or disadvantaged persons. Within the fourth category described by Pemsel , the appellant has been established for purposes which, though not falling under the three earlier heads, are nonetheless beneficial to the community.

120. Subject, therefore, to the suggested exclusion of the appellant by reason of its close association with the Department, and its implementation of federal governmental policy, the appellant qualifies as a " charitable body " . It is thus entitled to exemption from Victorian payroll tax.

The ambit of the governmental disqualification

121. Reasons for exclusion : In deciding whether an organisation, claiming to be a " charitable body " fits that description, the starting point for analysis is to identify the organisation ' s (ie the " body ' s " ) purposes. Obviously, the constitution of the body will be important for this purpose. However, it cannot be conclusive. The constitution will often have been drafted by lawyers with an eye to the revenue implications of the document. That is why it is material to have regard also to the activities of the organisation, as an assurance that the nominated " purposes " are genuine and express the real, as distinct from purely nominal, objectives for which the body is established.

122. The difficulty of identifying the character of an activity as charitable was explained by the Supreme Court of Canada [115] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 108 [ 152 ] - [ 153 ] . See also Attorney-General v Brown (1816) 1 Swans 265 [ 36 ER 384 ] ; Attorney-General v Eastlake (1853) 11 Hare 205 [ 68 ER 1249 ] . :

" The difficulty is that the character of an activity is at best ambiguous; for example, writing a letter to solicit donations for a dance school might well be considered charitable, but the very same activity might lose its charitable character if the donations were to go to a group disseminating hate literature. In other words, it is really the purpose in furtherance of which an activity is carried out, and not the character of the activity itself, that determines whether or not it is of a charitable nature … Unfortunately, this distinction has often been blurred by judicial opinions which have used the terms ' purposes ' and ' activities ' almost interchangeably. Such inadvertent confusion inevitably trickles down to the taxpayer organization, which is left to wonder how best to represent its intentions to [ the revenue ] in order to qualify for [ exemption ] " .

123. The disqualification of organisations from description as " charitable bodies " , on account of their connection with government, is linked to the characterisation of their " purposes " . If the " purposes " fall within the Pemsel criteria, the body will be classified as " charitable " . If, however, the " purposes " are no more than to implement governmental, including legislative, objectives, those features will colour the character of the body. It will then be designated as one to implement governmental policies, whether charitable or non-charitable. It will not qualify as a " body " whose purposes are identifiably " charitable " .

124. It was this distinction that was emphasised by Dean J in In re Cain (Deceased) [116] [ 1950 ] VLR 382. . One of the bequests of the will considered in that case was to the Children ' s Welfare Department at a nominated address, which was that of a State government department known by that name. The next-of-kin contended that the gift was void as not charitable. Various old cases on testamentary gifts to ministers and public officials [117] See, eg, Nightingale v Goulbourn (1848) 2 Ph 594 at 596 [ 41 ER 1072 at 1073 ] referred to at [ 1950 ] VLR 382 at 386. were examined for the instruction that they provided. It appears to have been accepted that a gift to the State of Victoria or to the Government of Victoria would not be charitable. But what of a gift to the Child Welfare Department? Dean J said [118] [ 1950 ] VLR 382 at 387. :

" In my opinion, if the present gift be construed as a gift for carrying on the ordinary activities of a Government department pursuant to a statute, the gift is not a gift for charitable purposes, even if the

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activities are such that if carried on by private persons they would be charitable. Such activities are simply part of the government of the country. … [ The department ] is concerned primarily with the welfare and protection of children. It is performing functions which Parliament, as a matter of public policy, has committed to it. It cannot, whilst performing its statutory duties, have any greater claim to be charitable than the Railways Department, the Department of Public Works, or the Crown Law Department. "

125. Notwithstanding these observations, and consonant with an approach favourable to upholding testamentary dispositions wherever possible, Dean J concluded that the gift was good because, according to the evidence, it would not be used " in ease of Government expenditure " [119] [ 1950 ] VLR 382 at 388. , but " an appropriate method of using it to benefit children under [ the Department ' s ] care in some manner not likely to be carried into effect in the ordinary application by the Department of its grants from consolidated revenue " would be devised. Adherence to the charitable purpose would remain under the control of the court.

126. The reasoning behind this analysis suggests a bifurcation between bodies that carry out governmental policy, using funds derived from Consolidated Revenue; and bodies that receive public funds but are not part of the machinery of government. For bodies that are part of such machinery, the charitable " purposes " necessary to attract characterisation as a " charitable body " are absent. Their purposes are governmental. Such bodies are therefore no more than an agent of government. Their activities may be beneficial to individuals and to the community, but they are still performing activities decreed by government. They lack the spark of altruism and benevolence that is essential to characterisation as " charitable " . They are, in Dean J ' s words, " simply part of the Government of the country " .

127. The Commissioner ' s arguments : The Commissioner ' s argument, that the appellant failed on this basis, was not without persuasive force, as is evident from its success in the Tribunal, before the primary judge and in the Court of Appeal.

128. The strongest evidentiary support for the characterisation which the Commissioner urged derived from the following facts:

129. In these circumstances, I can understand the reasons that led the three decision-makers below to find against the appellant ' s claim for exemption under s 10(1)(bb) of the Act. Specifically, I could understand the Commissioner deciding that, if the federal Minister wished to provide federal funds through a private corporation for the implementation of formulated federal health policies, with employees receiving wages, the wages of such employees should be treated like those of any other employer and should not attract the special exemption limited to a " charitable body " . It was this characterisation of the " purposes " and " activities " of the appellant that resulted in the conclusions unfavourable to exemption that have occasioned this appeal.

130. Significance of the " body " : In performing the task of characterisation enlivened by the Commissioner ' s ground of objection to the appellant, it is important to remember that the statutory question presented by s 10(1)(bb) of the Act is whether the organisation claiming exemption is a " charitable body " . It is the character of the " body " that is important for deciding whether the Act ' s description is satisfied. Obviously, the appellant is not, as such, a governmental body. It is not part of government, established by

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statute to effect governmental purposes as such. In any case, even bodies so established have sometimes been held capable of being treated as " charitable " .

131. For example, in British Museum v White [120] (1826) 2 Sim & St 594 [ 57 ER 473 ] . , a devise to the British Museum was held to be charitable although it was argued that the Museum was not a charitable institution because it was founded by the munificence of the State. Sir John Leach, VC said it was " a gift to an institution, established by the Legislature, for the collection and preservation of objects of science and of art, partly supplied at the public expense, and partly from individual liberality, and intended for the public improvement " . This, and several other cases in England [121] See, eg, Attorney-General v Heelis (1824) 2 Sim & St 67 [ 57 ER 270 ] . and in Australia [122] Robison v Stuart (1891) 12 LR (NSW) Eq 47 at 50. follow this line of reasoning.

132. The type of distinction identified in the early cases may be seen in most recent times, and in Australia, by contrasting Metropolitan Fire Brigades Board v Commissioner of Taxation [123] (1990) 27 FCR 279 . and Alice Springs Town Council v Mpweteyerre Aboriginal Corporation [124] (1997) 115 NTR 25 . .

133. In the former case, the question was whether the Fire Brigade Board, established under Queensland legislation, was a " public benevolent institution " . The Federal Court of Australia held that it was not. That Court characterised the Fire Brigades Board as a governmental body which, in the language of In re Cain , was simply exercising the functions of government. Whilst the expression " public benevolent institution " is not the same as " charitable body " , there is sufficient similarity to make the approach in that case noteworthy.

134. However, this decision was distinguished by the Court of Appeal of the Northern Territory in the Alice Springs Council case. An Aboriginal corporation claimed (and the Town Council contested) that it was entitled to exemption from rates in respect of " land used or occupied for the purposes of … charity " . The corporation had objects and purposes which extended to the provision of help to needy Aboriginal people as well as to its members. The corporation used premises on its lands for the accommodation of generally impoverished visitors who wished to stay in Alice Springs for short intervals. Mildren J, who gave the principal reasons of the Court of Appeal, rejected the argument that the corporation should, like the Fire Brigades Board in the earlier case, be characterised as an agency of government. He said [125] (1997) 115 NTR 25 at 41. :

" In this case no ministerial control could be exercised over any of the associations, either by virtue of the Acts under which they are constituted, or by the provisions of the constitutions. The mere fact that the associations are directly government funded does not deprive them of the character of being charities. I do not consider that the argument that the associations are merely carrying out the functions of government can be sustained. "

I agree with this approach.

135. Comparative law : When considering the question whether a body is " charitable " for legal purposes, courts of other common law countries have not treated as decisive the fact that it receives funds, even substantial funds, from government or in some ways contributes to effectuating the policy of government under the encouragement of subventions.

136. Tax concessions under federal law in the United States of America do not contain express exclusions from " charitable " status for recipients of government funds. Typically, the disqualifications provided by statute relate to the provision of private benefits to members; participation in propaganda activities; attempts to influence or alter legislation; or participation in political campaigns [126] See Internal Revenue Code (2000) USC 26, § 501(c)(3). . In a number of cases, the presence of governmental representation on a chartered private company established by government and supported by government funds has not prevented the corporation from being classified as a " charitable " organisation for tax purposes [127] Morales v New Jersey Academy of Aquatic Sciences 694 A 2d 600 (1997) ; Nazzaro v United States 304 F Supp 2d 605 (2004) . .

137. In the United Kingdom, an exempt charity for income tax purposes is " any body of persons or trust established for charitable purposes only " [128] Income and Corporation Taxes Act 1988 (UK), s 506(1). . In the Charities Act 1993 (UK) a " charity " is defined as " any institution, corporate or not, which is established for charitable purposes and is subject to the control of the High Court in the exercise of the Court ' s jurisdiction with respect of charities " [129] s 96(1). . The phrase " charitable purposes " is, in turn, defined to mean " purposes which are exclusively charitable according to the law of England and Wales " [130] s 97(1). . In this way the definition dating back to the Statute of Elizabeth, as explained in Pemsel , continues to

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apply. However, the case law does not reveal a prohibition, as such, against governmental association or funding, of the kind adopted by the Court of Appeal of Victoria in this case.

138. In 2001, the Charity Commissioners for England and Wales formulated guidelines that addressed the potential loss of a " charitable " character occasioned by too close an association with, or dependence upon, government [131] England and Wales, Charity Commissioners, The Independence of Charities from the State , Review of the Register publication RR7, (2001). . These guidelines make it clear that an institution is not prevented from being an institution established for charitable purposes simply because it has been " set up by government " . Nor is it a bar to such status that the body is created with a view to taking on a governmental function, so long as the body ' s purposes are exclusively " charitable " in the general sense. Moreover, under the guidelines, the motive of the promoter is irrelevant in determining whether the body is a " charity " . It is critical that the body must be independent, such that it exists to carry out its own charitable purposes and not simply for the purpose of implementing policies or directions of the government.

139. In New Zealand, under the Charities Act 2005 (NZ), registration for the purpose of concessions under the Income Tax Act 2004 (NZ) and the Gift Duties Act 1968 (NZ) depends on demonstration of a " charitable purpose " . This is defined to include criteria that, in part, repeat those adopted in Pemsel [132] Charities Act 2005 (NZ), s 5(1). .

140. In Canada the Income Tax Act 1985 (Can) provides for the registration of charities. To be registered for this purpose, the charities must satisfy stated criteria [133] Income Tax Act RSC 1985 (Can), c 1, 5th supp, s 149(1)(f). . These include the requirement that more than 50 % of the controlling officers of the body be independent of private or public " foundations " and that no controlling group contribute more than 50 % of the capital. However, the latter restriction does not apply to capital contributed by government. No exclusion for governmental association or funding is expressed in the Canadian legislation; nor is it evident in the Canadian case law.

141. Obviously, many of these instances depend on their own special legislation. They suggest that generally the establishment, control or funding of a body by government may be relevant to the characterisation of that body ' s purposes and objects as " charitable " or otherwise. However, if a body is established separately from government, with substantial independence in its organisation, it is not necessarily disqualified from characterisation as " charitable " merely because it receives substantial government funds.

142. Government funding for public benefit through private sector organisations has expanded greatly in recent years in many countries, including in Australia. This development has occurred as a means of securing perceived advantages, including decentralisation; and securing the efficiency that small, local, private sector bodies can achieve. From the standpoint of legal policy, it would be undesirable for the law to needlessly expand the disqualification of such bodies from the advantages that they enjoy as " charities " under revenue law where their purposes otherwise qualify. If, because of a particular governmental association, and for inter-governmental, political or other reasons, governments wish to remove exemptions from bodies that otherwise meet the requirements of being " charitable " within the general law as it has been expounded by the courts, they can easily do so by securing the amendment of the legislation. In the matter of exemptions for charities and in defining exempted charities, Australian legislatures have a record of enacting very particular provisions when they deem it to be necessary. There is no need for the courts to descend to such particularity.

The appellant is a " charitable body "

143. When attention is directed to the characterisation of the " body " which is constituted by the appellant, and the question is asked whether or not it is " charitable " , within s 10(1)(bb) of the Act, the better answer is therefore that it is " charitable " . True, the appellant receives most of its funds from government, but so too did the Aboriginal corporation in the Alice Springs Council case, and so did many other bodies held by this Court to be charitable. If attention is focused on the " purposes " of the body, rather than its funding as such, those purposes emerge as " charitable " within the fourth category in Pemsel . They are performed for the public benefit in the sense there described. Care was taken in constituting the appellant to preserve its ultimate independence from government if ever the

ATC 4636

position should arise that government wished the appellant to perform activities inimical to its members, their patients or services conceived and expressed through the board.

144. The appellant ' s board contained no representative of the Department or the government. True, the financial and other arrangements imposed by the association with the Department were rigorous. But that is how it must be in the expenditure of funds for which the Department, and its Minister, are accountable, through the Parliament, to the electors from whom taxes are raised. At all times, as a " body " , the appellant was a private corporation, constituted independently of government. It was only tied to the governmental purposes so long as those purposes coincided with benefits to the public, the patients and the members, as perceived and accepted by the constituent body of the appellant. The appellant was fulfilling its own objectives and purposes, which were conceded to be beneficial to the public. The appellant was not simply carrying out the objects of government. Still less was it part of the " government of the country " [134] In re Cain [ 1950 ] VLR 382 at 387 per Dean J. .

145. It follows that the suggested ground of disqualification from entitlement to the exemption claimed by the appellant was not established. The Court of Appeal erred in law in deciding otherwise. Wider questions concerning the ambit of the suggested disqualification for governmental association need not be answered in this appeal.

Orders

146. I therefore agree in the orders proposed by the other members of the Court.

Footnotes

[29] Central Bayside Division of General Practice Ltd v Commissioner of State Revenue (2005) 60 ATR 151 ; [ 2005 ] ATC 4586 .
[30] Decision of the Victorian Civil and Administrative Tribunal (Taxation Division), G Gibson, Member, 22 November 2002 ( “ Decision of the Tribunal ” ).
[31] Central Bayside Division of General Practice Ltd v Commissioner of State Revenue (2003) 53 ATR 473 ; [ 2003 ] ATC 4835 .
[32] Chernov JA, Osborn AJA; Byrne AJA dissenting.
[33] Royal National Agricultural and Industrial Association v Chester (1974) 48 ALJR 304 at 305-306; 3 ALR 486 at 488.
[34] Reasons of Gleeson CJ, Heydon and Crennan JJ at [ 1 ] - [ 15 ] .
[35] Reasons of Callinan J at [ 148 ] - [ 160 ] .
[36] Reasons of Gleeson CJ, Heydon and Crennan JJ at [ 5 ] - [ 6 ] .
[37] Amounting to approximately 93 % of all income. See reasons of Callinan J at [ 157 ] .
[38] See reasons of Callinan J at [ 158 ] . Forty-three percent of total income was outcome-based funding grants. The balance of federal funding was project-based.
[39] See cl 3 of the constitution of the appellant in the reasons of Gleeson CJ, Heydon and Crennan JJ at [ 5 ] .
[40] Decision of the Tribunal at [ 25 ] .
[41] (2003) 53 ATR 473 at 476 [ 8 ] , 481 [ 13 ] - [ 14 ] ; [ 2003 ] ATC 4835 at 4837, 4841 .
[42] (2005) 60 ATR 151 at 153 [ 3 ] ; [ 2005 ] ATC 4586 at 4588 .
[43] Reasons of Gleeson CJ, Heydon and Crennan JJ at [ 16 ] - [ 20 ] ; reasons of Callinan J at [ 161 ] - [ 168 ] .
[44] 43 Eliz I c 4.
[45] [ 1891 ] AC 531 at 581 .
[46] (2003) 53 ATR 473 at 486 [ 32 ] ; [ 2003 ] ATC 4835 at 4845 .
[47] (2005) 60 ATR 151 at 160 [ 22 ] ; [ 2005 ] ATC 4586 at 4593 .
[48] Incorporated Council of Law Reporting (Q) v Federal Commissioner of Taxation (1971) 125 CLR 659 at 666 per Barwick CJ.
[49] (2005) 60 ATR 151 at 160-161 [ 23 ] ; [ 2005 ] ATC 4586 at 4593-4594 .
[50] (2005) 60 ATR 151 at 159-160 [ 21 ] ; [ 2005 ] ATC 4586 at 4593 .
[51] (2005) 60 ATR 151 at 171 [ 61 ] per Osborn AJA; [ 2005 ] ATC 4586 at 4602 .
[52] Pemsel [ 1891 ] AC 531 at 583.
[53] The Statute of Elizabeth is set out in modern English rendition in McGovern v Attorney-General [ 1982 ] Ch 321 at 332 per Slade LJ.
[54] Constitution, s 109.
[55] Reasons of Gleeson CJ, Heydon and Crennan JJ at [ 46 ] - [ 47 ] ; reasons of Callinan J at [ 180 ] - [ 181 ] .
[56] Reasons of Gleeson CJ, Heydon and Crennan JJ, fn 6.
[57] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513 [ 103 ] .
[58] cf Roberts v Bass (2002) 212 CLR 1 at 54 [ 143 ] .
[59] Coulton v Holcombe (1986) 162 CLR 1 at 7-9.
[60] (2001) 206 CLR 512 at 602 [ 231 ] .
[61] (2001) 207 CLR 72 .
[62] (2001) 207 CLR 72 at 77 [ 9 ] .
[63] (2001) 207 CLR 72 at 89 [ 46 ] (footnote omitted).
[64] Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 526 [ 11 ] , 545 [ 63 ] ; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 37-39 [ 11 ] - [ 15 ] , 111-112 [ 249 ] ; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 266 [ 159 ] , 269 [ 164 ] ; Conway v The Queen (2002) 209 CLR 203 at 227 [ 65 ] ; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 542-544 [ 143 ] - [ 148 ] ; Western Australia v Ward (2002) 213 CLR 1 at 60 [ 2 ] , 66 [ 16 ] , 69 [ 25 ] , 249-250 [ 588 ] ; Wilson v Anderson (2002) 213 CLR 401 at 430 [ 47 ] , 459-460 [ 144 ] - [ 146 ] ; Joslyn v Berryman (2003) 214 CLR 552 at 595-596 [ 137 ] ; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at 359 [ 127 ] ; Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1 at 6-7 [ 7 ] - [ 9 ] ; Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109 at 138 [ 87 ] ; Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at 167-168 [ 90 ] - [ 94 ] ; Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592 at 649-650 [ 181 ] ; R v Lavender (2005) 222 CLR 67 at 101-102 [ 107 ] ; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 79 ALJR 1850 at 1856 [ 30 ] ; 221 ALR 448 at 455; Travel Compensation Fund v Tambree t/as R Tambree and Associates (2005) 80 ALJR 183 at 195 [ 54 ] ; 222 ALR 263 at 277; Combet v Commonwealth (2005) 80 ALJR 247 at 280 [ 135 ] ; 221 ALR 621 at 660; Neindorf v Junkovic (2005) 80 ALJR 341 at 350-351 [ 42 ] ; 222 ALR 631 at 641; Weiss v The Queen (2005) 80 ALJR 444 at 452 [ 31 ] ; 223 ALR 662 at 671.
[65] Chesterman v Federal Commissioner of Taxation (1925) 37 CLR 317 reversing Chesterman v Federal Commissioner of Taxation (1923) 32 CLR 362 . See also Ashfield Municipal Council v Joyce [ 1978 ] AC 122 (PC).
[66] See, for example, Charities Act 1978 (Vic).
[67] Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 6 November 1992 at 566, The Hon A R Stockdale MP, Treasurer, delivering the Second Reading Speech to the State Taxation (Amendment) Bill 1992 (Vic).
[68] The Act, s 3.
[69] See for example, Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at 262 [ 28 ] ; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 328-329 [ 22 ] .
[70] Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109 at 146 [ 84 ] ; cf Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459 at 477 [ 52 ] ; Federal Commissioner of Taxation v Citylink Melbourne Ltd [ 2006 ] HCA 35 , my own reasons at [ 12 ] .
[71] Pemsel [ 1891 ] AC 531 at 543.
[72] 51 and 52 Vict c 42, s 13(1).
[73] By s 13(2).
[74] s 38.
[75] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 40 [ 32 ] .
[76] In 1966, the Chief Justice ’ s Law Reform Committee of Victoria in its report on Charitable Trusts , (1962-1966) had recommended in par [ 32 ] that no attempt be made to enact a statutory definition of “ charity ” . Queensland Law Reform Commission, Trust, Trustees, Settled Land and Charities , Report No 8, (1971); Law Reform Commission of Tasmania, Unclaimed Charitable Funds , Report No 3, (1975); Victorian Legal and Constitutional Committee, Report to the Parliament on the Law Relating to Charitable Trusts , (1989); and Law Reform Commission of Tasmania, Variations of Charitable Trusts , Report No 38, (1984).
[77] The Nathan Report , (1952); the Goodman Report , (1976). See also Chesterman, Charities, Trusts and Social Welfare , (1979) at 403-404.
[78] Royal National Agricultural and Industrial Association v Chester (1974) 48 ALJR 304 at 306; 3 ALR 486 at 489.
[79] Extension of Charitable Purpose Act 2004 (Cth).
[80] Concerning provision of child care services on a non-profit basis (s 4(1)); open self-help groups (s 5(1)(a)); and closed and contemplative religious orders that regularly undertake “ prayerful intervention ” at the request of members of the public (s 5(1)(b)).
[81] See Kemp Report , (1997) by the Scottish Council for Voluntary Organisations and Scottish Charity Law Review Committee Report , (2001).
[82] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 106 [ 149 ] .
[83] [ 1998 ] 3 FC 202 at 214 [ 8 ] .
[84] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 107 [ 150 ] .
[85] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 91 [ 125 ] per Gonthier J.
[86] [ 1999 ] 1 SCR 10 at 51 [ 50 ] .
[87] Bromley, “ Contemporary Philanthropy — Is the Legal Concept of ‘ Charity ’ Any Longer Adequate? ” , in Waters (ed), Equity, Fiduciaries and Trusts , (1993) 59 at 65-66.
[88] Duff, “ Tax Treatment of Charitable Contributions in Canada: Theory, Practice, and Reform ” , (2004) 42 Osgoode Hall Law Journal 47 at 68.
[89] Charities Act 2005 (NZ), s 5(1).
[90] Charities Act 2005 (NZ), s 5(3).
[91] Municipal Corporation of Delhi v Children Book Trust AIR 1992 SC 1456 .
[92] CIT v FICC AIR 1981 SC 1408 at 1414-1415 per Venkataramiah J.
[93] (1923) 32 CLR 362 . See also Swinburne v Federal Commissioner of Taxation (1920) 27 CLR 377 at 384.
[94] (1923) 32 CLR 362 at 382 citing Commissioner of Inland Revenue v Scott (1892) 2 QB 152 at 165.
[95] (1923) 32 CLR 362 at 399.
[96] (1923) 32 CLR 362 at 397-398.
[97] See, eg, Trustees of Queen ’ s College v Mayor & c of Melbourne [ 1905 ] VLR 247 at 255, noted in Ashfield Municipal Council v Joyce [ 1978 ] AC 122 at 139.
[98] Chesterman (1925) 37 CLR 317 ; [ 1926 ] AC 128 .
[99] (1925) 37 CLR 317 ; [ 1926 ] AC 128 at 131.
[100] Joyce [ 1978 ] AC 122 at 136-139; cf Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159 at 174-175, adhering to Pemsel .
[101] Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth); Australia Act 1986 (Cth), s 11(1).
[102] Pemsel [ 1891 ] AC 531 at 583.
[103] Joyce [ 1978 ] AC 122 at 136-139.
[104] Reasons of Gleeson CJ, Heydon and Crennan JJ, fn 6, referring to considerations of convenience.
[105] A list of organisations that have qualified for the exemption can be found in Joyce [ 1978 ] AC 122 at 139.
[106] Young Men ’ s Christian Association of Sydney (1954) 20 LGR (NSW) 35 per Sugerman J noted in Joyce [ 1978 ] AC 122 at 139.
[107] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 .
[108] Iacobucci J (Cory, Major and Bastarache JJ concurring).
[109] [ 1999 ] 1 SCR 10 at 107 [ 150 ] applying R v Salituro [ 1991 ] 3 SCR 654 at 670.
[110] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 59 [ 81 ] per Gonthier J (L ’ Heureux-Dub é and McLachlin JJ concurring).
[111] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 90-91 [ 124 ] - [ 125 ] .
[112] Macquarie Dictionary , 3rd ed (1997) at 372.
[113] Macquarie Dictionary , 3rd ed (1997) at 372.
[114] It is insufficient merely to show that the claimant is established for the “ public benefit ” in the ordinary sense of that term. It remains necessary for it to demonstrate how its purposes are beneficial in a way that the law regards as charitable. See D ’ Aguiar v Guyana Commissioner of Inland Revenue [ 1970 ] TR 31 at 33 (PC).
[115] Vancouver Society of Immigrant and Visible Minority Women v MNR [ 1999 ] 1 SCR 10 at 108 [ 152 ] - [ 153 ] . See also Attorney-General v Brown (1816) 1 Swans 265 [ 36 ER 384 ] ; Attorney-General v Eastlake (1853) 11 Hare 205 [ 68 ER 1249 ] .
[116] [ 1950 ] VLR 382.
[117] See, eg, Nightingale v Goulbourn (1848) 2 Ph 594 at 596 [ 41 ER 1072 at 1073 ] referred to at [ 1950 ] VLR 382 at 386.
[118] [ 1950 ] VLR 382 at 387.
[119] [ 1950 ] VLR 382 at 388.
[120] (1826) 2 Sim & St 594 [ 57 ER 473 ] .
[121] See, eg, Attorney-General v Heelis (1824) 2 Sim & St 67 [ 57 ER 270 ] .
[122] Robison v Stuart (1891) 12 LR (NSW) Eq 47 at 50.
[123] (1990) 27 FCR 279 .
[124] (1997) 115 NTR 25 .
[125] (1997) 115 NTR 25 at 41.
[126] See Internal Revenue Code (2000) USC 26, § 501(c)(3).
[127] Morales v New Jersey Academy of Aquatic Sciences 694 A 2d 600 (1997) ; Nazzaro v United States 304 F Supp 2d 605 (2004) .
[128] Income and Corporation Taxes Act 1988 (UK), s 506(1).
[129] s 96(1).
[130] s 97(1).
[131] England and Wales, Charity Commissioners, The Independence of Charities from the State , Review of the Register publication RR7, (2001).
[132] Charities Act 2005 (NZ), s 5(1).
[133] Income Tax Act RSC 1985 (Can), c 1, 5th supp, s 149(1)(f).
[134] In re Cain [ 1950 ] VLR 382 at 387 per Dean J.

 

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