Aid-Watch Incorporated v Commissioner of Taxation
[2010] HCATrans 155
[2010] HCATrans 155
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S82 of 2010
B e t w e e n -
AID/WATCH INCORPORATED
Appellant
and
COMMISSIONER OF TAXATION
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 16 JUNE 2010, AT 10.19 AM
(Continued from 15/6/10)
Copyright in the High Court of Australia
FRENCH CJ: Yes, Mr Bennett.
MR BENNETT: If the Court pleases. Your Honours, during the next hour or so I propose to deal with four matters. Those are firstly the Lange argument and the abolition of the rule about the political exception, secondly, an alternative argument to our argument based on levels of generality. It is an argument which is contained in our written submissions. I need to refer to it briefly. The third is to conclude what we say about the Canadian and the United States cases. The fourth is notices of contention dealing with education and poverty.
In relation to the Lange argument, might I just remind your Honours of two decisions. The first is that of your Honour Justice Hayne in McClure v Australian Electoral Commission (1999) 73 ALJR 1086. That was an Electoral Commission case, a Court of Disputed Returns case and one of the complaints concerned the publication of political material in the election. And your Honour at paragraph [28] said this:
The short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise. The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication.
And there is a passage referred to from Lange. That was picked up and applied by Justice McHugh in Mulholland v Australian Electoral Commission 220 CLR 181. In paragraph 107 the argument there was that the freedom of communication required the Electoral Commission to put the name of the group to which the candidate belonged on the ballot paper whether or not it was a registered political party. Justice McHugh said:
Because the DLP has no right to make communications on political matters by means of the ballot‑paper other than what the Act gives, Mr Mulholland’s claim that the Act burdens the DLP’s freedom of political communication fails.
So that is not a case so much of obligation as a case of a different sort of restriction –
Proof of a burden on the implied constitutional freedom requires proof that the challenged law burdens a freedom that exists independently of that law.
This freedom was not in that category. I remind your Honours of those cases for this reason. I appreciate that the way Lange is put against me is to say it demonstrates the importance of political communication and that in a general sense the law of charitable trusts can pick that up, but we submit that that is extending a fairly narrow freedom far beyond its original intendment and that it is not intended as a right to be subsidised in communication or a right to have some benefit in relation to communication. It is a very limited freedom. It was not extended in McCLure and Mulholland and it should not be indirectly extended in this case.
The Lange argument necessarily involves, in effect, repealing the common law rule, or the equitable rule which operates by way of exception to what would otherwise constitute a charitable trust. It was suggested to me in argument yesterday that there was just as dramatic a jump in Bowman’s Case, but we submit that one of the primary bases of the rule, which was the basis largely adopted in Bowman’s Case, was an incremental basis and, indeed, that basis is criticised by my learned friend who says if you go back to the cases referred to in Bowman none of them were political. They were cases basically on uncertainty or difficulty with administration.
The political exclusion was introduced – if one wants to use the word “introduced” – in consequence of that line of authority. It is not the type of judgment which the judicial branch is equipped to make. It involves the court in difficulties analogous to those which arise where one has uncertainty. A very clear example of that in modern times is a case we have provided to your Honours called Yanner v The Minister. This is not the Yanner in the High Court – it is a decision of the full Federal Court in which Justice Kiefel participated.
GUMMOW J: Have you finished dealing with Lange?
MR BENNETT: No, your Honour. It is reported at (2001) 108 FCR 543. That was a case where the ATSIC legislation provided that a person was disqualified from standing for election as a member of ATSIC if he had certain types of criminal conviction. The Act then said, “unless the Federal Court otherwise orders”, but gave the Federal Court no criteria for so otherwise ordering. It was an interesting case in that both Mr Yanner and the Commonwealth intervening and the Minister argued for the validity of the legislation. Over the arguments of all the parties the court held by majority that it was invalid. It was invalid because by not providing criteria it required the court to exercise what was, in effect, a political judgment.
GUMMOW J: What does this case have to do with anything we are now debating?
MR BENNETT: It demonstrates the relationship, your Honour, between uncertainty and the political exclusion because here, in effect, the court said because there are no criteria, to create criteria involves the court involving itself in what is, in effect, a political or legislative question.
FRENCH CJ: That went to its characterisation as judicial power or otherwise.
MR BENNETT: That is what it related to, yes. Particularly Justice Kiefel’s conclusion in paragraph 114 makes the relationship quite clear. I will not take your Honours to it. I have given your Honours the case. The point we make from it is this is very similar in a sense to the process engaged in in Bowman.
GUMMOW J: It is not similar at all.
MR BENNETT: The court took a lot of cases on uncertainty and said those cases show that the court cannot administer a trust where it has to create the criteria and that is really what it has to do when it is making a judgment whether a political view is right or wrong or good or bad. That relationship is one of the reasons for the rule and a reason which continues ‑ ‑ ‑
GUMMOW J: Well, how about the cases on just and equitable ground for winding up partnerships, Mr Bennett? The courts have managed to cope with that for a couple of hundred years.
MR BENNETT: Yes, they have.
GUMMOW J: And it found its way in the statute dealing with corporations.
MR BENNETT: Yes. Well, your Honour, maybe the Commonwealth should have appealed the Yanner Case to this Court.
GUMMOW J: This is talking about Chapter III.
MR BENNETT: Yes, it is, your Honour. The separation of powers is very much behind the thinking in cases like Bowman because it is outside the realm of the courts to make political judgments.
GUMMOW J: It all depends what you mean by “political”, Mr Bennett.
MR BENNETT: Of course, it does, your Honour, and that is the balance of my submissions but when one is talking about abolition ‑ ‑ ‑
GUMMOW J: Every time the court decides whether a federal law is in or outside section 51 it is making a political decision, I suppose, in a sense, namely, as to the division of the competence of legislative power in the body politic.
MR BENNETT: Yes. Certainly there are things which are political ‑ ‑ ‑
GUMMOW J: This term “political” becomes a pejorative term. There is no reason why it should be a pejorative term at all.
MR BENNETT: Your Honour, we do not treat it as prerogative. What we submit is that there are certain types of question which are inappropriate for courts and adjudging whether a polemic on a particular controversial political question is something which it is or is not charitable to publish is something which necessarily gets the court involved in that area and we simply put that as a justification for the rule in the form in which it is reached.
CRENNAN J: What about if there is a distinction to be made between polemic which is in the public interest and polemic which does not advance the public interest? Perhaps there is a distinction to be made there.
MR BENNETT: Well, your Honour, we would submit that is precisely the distinction which courts should not be required to make. It is because of that problem that one has the political exclusion. Now, “political” I accept is an imprecise word and I accept that one has to be careful as to its meaning, but our answer to that is, well, whatever its meaning, what this body does is clearly in that category.
CRENNAN J: How could reasoned debate advancing a change in government policy be said to be contrary to the public interest?
MR BENNETT: We do not say it is, your Honour. Like all rules of law, there may be cases that seem harsh in their application. It is interesting to note what was said by a justice of the Divisional Court in applying Mulholland in England. This is R v Radio Authority; Ex parte Bull. It is reported both in the Divisional Court and in the Court of Appeal. I need to refer your Honours to a passage in the Divisional Court first; that is [1996] QB 169, and there is a useful passage at page 187. This was a case about whether a restriction on political matters on the BBC was infringed by Amnesty International being promoted on it. At the end of the judgment of Lord Justice Kennedy at page 187 his Lordship concluded with these words:
Postscript
Many people, particularly lawyers, admire the work of A.I.B.S., and the dedication of those who work for it. But it is worth recognising that something which may appear to be an unnecessary restriction upon a good cause could also usefully restrain something manifestly less worthy.
One can summarise that in the old cliché, hard cases make good law.
FRENCH CJ: How does your argument engage with the proposition that in determining that public advocacy of improvements in the law, or changes to the law, that is to use a neutral term, or to government policy and practice, is itself a public benefit, subject to limits relating to criminal speech and so forth, how does your proposition engage with that because that does not involve the court in making any judgment about the merits of the particular argument that is being advanced by the party advocating change?
MR BENNETT: Your Honour, we would answer that in a number of ways. The first proposition is this. We accept fully that the establishment of a debating society or a political debating society or a debating society to debate a political topic if it is not a loaded political topic, is clearly on the one side of the line. That one can accept. But when one takes the next step and says anything which is permitted or which may not be prohibited by the freedom of political communication is itself necessarily for the public benefit regardless of its merits, we submit that is a very large stretch for the law of charitable trusts.
FRENCH CJ: But it is not answered by the propositions that you have been putting to us this morning, however large a stretch it may be. What you have been saying does not engage with that proposition, does it?
MR BENNETT: Well, it does in a number of ways. The courts first of all are seen to be promoting and encouraging particular forms of expression.
HAYNE J: No, they are not. There is a sharp distinction to be drawn between the fact or occurrence of debate and the content of the debate. Your argument seems to merge the two necessarily. I do not think that merger is appropriate or necessary, is it, Mr Bennett?
MR BENNETT: Well, perhaps one would answer it more effectively this way. I accept what your Honour says to me. The category of category four is other matters that are for the public benefit and within the intendment of the Statute of Elizabeth. Any form of advocacy for any cause is a very large thing to place within that and in some cases it will be contrary to the public benefit. We have given the example of appeal of anti-discrimination laws and the encouragement of discrimination, the advocacy of a return to the White Australia Policy, the advocacy of the abolition of women’s right to vote. One could think of lots of examples of matters that would be protected by the freedom of political communication as to which it is possible that the setting up of an organisation to debate them might be thought to be in the public interest, but as to which the polemic on one side might be thought to be very much contrary to the public interest.
A religion which said in order to bring on the Armageddon, let us try and destroy the environment as much as possible to make the world uninhabitable, might qualify as a religion. Its tenets would certainly not be for the public benefit, and there are matters within the fourth category where even more clearly one might say, well, that is not for the public benefit, and there are borderline areas. There are areas where the putting of one side may or may not be for the public benefit and the courts may have to make judgments in relation to them which thus far they have been protected from making. We would submit that the case for the abolition of the rule for that large step, as we describe it, is not made out.
KIEFEL J: Why do you say that the courts have been protected from making decisions about whether or not something is for the public benefit? I thought that was really the approach that was taken in the National Anti‑Vivisection Case, regardless of whether one now thinks it was right or wrong.
MR BENNETT: The National Anti‑Vivisection Case is rather like a case where the court says judgment for the defendant but we will deal with what the damages would have been if we had been of the other view. It is a case where the court said this is within the political exclusion, therefore we do not have to consider those questions, but if we were not of that view, looking at this body we think it is not for the public benefit. So the court having said it, should not have to make that judgment, goes ahead and makes it in the alternative. That seems to be what happened in that case.
KIEFEL J: The question of the public benefit on Sir Owen Dixon’s view in the Royal North Shore Hospital Case appeared to his Honour to be the key to the question whether an object was charitable, whether it fell within the four categories. On the view expressed by his Honour, the question of political exclusion was something of a distraction from that central question.
MR BENNETT: It may be a distraction in one sense, but it is the doctrine which prevents the court having to answer that question in a case where it is undesirable for the court to answer it. Yanner is, as we say, a good example of that, although that is a Chapter III case and therefore at a different level.
KIEFEL J: I am just not quite sure what you are saying in relation to this case about whether or not the court can make a determination of public benefit or not.
MR BENNETT: The court would have to decide, for example, whether campaigning against what is described as boomerang aid is for the public benefit or not. Some people would say it is for the public benefit to create a win‑win situation in which one gives aid but requires the work to be carried out by an Australian company so some of the profit flows back to Australia. Others, such as Aid/Watch, would say that is totally wrong and it should not be done. That is a political question. It is a question on which they take a particular point of view.
KIEFEL J: What I am concerned about, Mr Bennett, is whether or not you are saying that the court should not enter upon that question at all or whether you are saying that the court could not be satisfied here that it is in the public benefit because it involves monitoring and campaigning and, on the view of the Full Court, has a one‑sided view. Which is it?
MR BENNETT: I am not quite grasping the distinction, your Honour.
KIEFEL J: You seem to be saying that the court should not enter upon the inquiry whether something is for the public benefit because it is a question that cannot be answered by the court properly and fully. I am wondering whether that is really your position or whether you are saying in this case the court should conclude that it has not been shown to be for the public benefit, whether that is sufficient.
MR BENNETT: Primarily the first, your Honour – primarily that one should not have to ask those questions in relation to political issues of the type involved here. If the court had to administer this trust, if it were an administration suit and the question of being a charitable trust were to arise there, how would the court administer this role of monitoring and campaigning and trying to persuade government to deal with aid in a particular way? There is a range of reasons which go far beyond the original idea of courts not being seen to advocate changes in the law. It is a broader concept than that and we submit it does serve useful purposes.
FRENCH CJ: It makes no difference that accepting, subject to your notice of contention, that the ultimate purpose of the public advocacy is the advancement of one of the first three classes in Pemsel ‑ ‑ ‑
MR BENNETT: No, Your Honour.
FRENCH CJ: ‑ ‑ ‑ in this case the relief of poverty and the advancement of education.
MR BENNETT: No. That involves an assumption. That involves putting together two things which do not really live well together. It involves putting together the concept that debate is desirable and the concept that something is related to education or religion or poverty. It does not follow as a matter of ineluctable logic that discussion of poverty will assist to alleviate it or that discussion of education will improve education or the discussion of religion will cause its advancement. That just does not follow. In particular cases it may, but in other cases it may not.
The problems that are raised by weighing whether particular discourse operates to the public benefit is not answered by saying it relates to one of the three categories. One could think of many situations in which public discussion of an issue may not benefit those concerned with it. I do not want to get involved in obvious political examples, but it may well be that public discussion of Australia’s immigration policy would not be of benefit of asylum seekers, that public discussion of the sentencing of criminals would not be of benefit to people being sentenced and that public discussion of matters concerned with particular aspects of education might or might not operate to the advantage of education.
One cannot simply assume that all public discussion will necessarily advantage religion or education or poverty merely because it is on that subject. An example in the case of religion might be a person advocating atheism. Whatever one could say about whether or not that would be for the benefit of the community, it certainly would not be for the advancement of religion.
CRENNAN J: Could you not take examples closer to the facts? As I understand it, the animus toward the World Bank is driven by opposition to its policies in relation to water.
MR BENNETT: Yes, and perhaps more clearly – I will come to this when I get to poverty, but many of the objects and specific policies of the applicant might well be thought to be antithetical to the relief of poverty. If there was an issue about providing aid to build a road through a rainforest to an impoverished village or to build a dam to supply it with water or to build a mine which would provide employment to the villagers, those matters might well work to the alleviation of poverty, but they would be strongly opposed by my learned friends.
GUMMOW J: These are purpose trusts, Mr Bennett.
MR BENNETT: Yes.
GUMMOW J: They are purpose trusts. The law has never, as I understand it, imposed as a criterion of validity the efficacy of the purpose to achieve the result.
MR BENNETT: Your Honour, it is not the efficacy of the purpose. The purpose is totally missing and, indeed, is antithetical to what is being advocated in some areas where there is a conflict between the environment and poverty and one has to benefit one or benefit the other.
GUMMOW J: There are cases where the courts have said, well, on no view could you say – In re Pinion – is one, on no possible view could you reach the conclusion that this is a purpose of advancing aesthetic appreciation and education because this is a worthless collection of junk that this testator wants to set up as a museum, but those cases apart, one does not ordinarily enter into some evaluative assessment of whether this will be educative or not.
MR BENNETT: No, but one might have to ‑ ‑ ‑
GUMMOW J: Take the expression “technical education” for example.
MR BENNETT: Yes. No, your Honour, I accept that, but one might have to if one tried to put education and poverty into the fourth class in relation to the Lange argument in the manner which it sought to do because then one would have to say ‑ ‑ ‑
GUMMOW J: The Chief Justice was asking about classes one, two and three.
MR BENNETT: Yes. Well, in classes one, two and three there are different considerations. Now, the other matter in relation to the abolition of the rule is this. I have taken your Honour to an English case showing that McGovern has been applied by the Court of Appeal in the United Kingdom. I have already taken your Honours to cases showing it has been applied in Canada. We have not fully researched the position in other Commonwealth countries but we have ascertained that the political exclusion seems to be applied in India and there is a case, which we have given your Honours a copy of, your Honours needed to go to it, it is Hidayat Beg v Behari Lal reported in 1941, the Law Reports of Allahabad.
GUMMOW J: It is the All India Reports, is it not?
MR BENNETT: All India Reports for Allahabad, yes. your Honour, at page 377. There is a discussion. That case involved a number of other matters which are not relevant here including whether the real purpose of the trust was to defeat the settlor’s creditors, but we will not go into that.
At the end of the day the court found that the political element, on balance, did not invalidate the trust. But the importance of the case for present purposes is that at paragraphs 23 and 25 it is clear that Justice Dar regarded Bowman v Secular Society and the political exclusion as being in force. There is a short discussion, as I say, in paragraphs 23 and 25. I do not rely on it for anything further than that. We have not found any other cases in India so that seems to suggest that the – it is all we use it for that the exclusion has been applied as part of the law there.
We have not found any case in India referring to McGovern and we have not done detailed research on other Commonwealth countries, except that I can say we have not found anything in CommonLII where McGovern is referred to in other Commonwealth countries. But the search engine is insufficient to be able to give your Honour any real information either way. So that is all I wish to say about Lange and the abolition of the rule.
GUMMOW J: Before you depart from Lange I think you might have approached Lange at the wrong level of generality, namely I think what is relied upon from Lange is the notions attempted to be conveyed at page 559 to 560 or, perhaps more accurately, beginning at 557, I think, namely, the enhancement of the political process by these forms of communication. It is at that general level, I think, that Mr Williams fixes his case. He is not concerned to find some federal law that is invalid because it is an unreasonable restriction.
MR BENNETT: No, your Honour, but the way it is put by the Court – and it is the whole Court at page 559 – in applying that to lawyers:
Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be “directly chosen by the people” –
But what is the indispensable incident is freedom of communication and it is a leap from that to the encouragement of communication or the promotion of communication, or the giving of fiscal advantages for communication of that type. That, we submit, is a large jump. Now, I understand what your Honour says about levels of generality, and it may be that at a very much higher level of generality one can say, well, the case says that political communication is a good thing.
GUMMOW J: No, the advancement of it in the terms of the Statute of Elizabeth; that is what we are talking about.
MR BENNETT: Yes – well, your Honour, one does not necessarily equate absence of restriction with advancement. There is a distinction between the positive and the negative, and if one were laying down a general principle of law for the future concerning political communication one would hesitate before jumping from freedom of communication to advancement of communication, and that is illustrated by the cases I have taken your Honours to where the freedom does not have a positive aspect and does not apply so as to permit one to do what is otherwise prohibited, or otherwise not permitted.
So as in Mulholland where there is no freestanding right in a candidate to have his political affiliation put on a ballot paper, this freedom does not create such a right. It does not permit communication where – unless it is otherwise permitted. That is less of a step – the step that was sought to be taken in Mulholland – in a sense may be less of a step than is sought to be taken here where it is sought to reward in some way political communication at, in most cases, the expense of the revenue, perhaps occasionally at the expense of beneficiaries.
FRENCH CJ: Of course, when we speak of freedom of speech we are not speaking just in a constitutional setting but also in a common law setting, are we not?
MR BENNETT: Yes, we are, your Honour, but the common law does not reward it, it merely ‑ ‑ ‑
FRENCH CJ: But it protects it in a ‑ ‑ ‑
MR BENNETT: ‑ ‑ ‑ protects it, and what is sought here is a fiscal advantage for it.
GUMMOW J: Well, we are back to that, Mr Bennett.
MR BENNETT: We are back to that, yes. Now, the second matter I can deal with very briefly. It is dealt with in paragraph 43 of the respondent’s submissions. It is an alternative argument, and I stress that. If your Honours are against me on the question of the levels of generality and whether it is a single test without a second step so that one simply asks the question of is one within one of the charitable categories and does not apply any exclusion, if one does that there are findings of fact by the Tribunal which still produce the result that the Full Court was correct.
If I could just show your Honour, first, paragraph 39 of the Tribunal’s decision at pages 817 to 818 of the appeal book. Your Honours, in the second‑last line on page 817 the Tribunal says:
The whole object –
We stress the word “whole”, and in a sense, of course, that may involve levels of generality, but it is not put that way –
of Aid/Watch is to influence public opinion by making the results of its research available, with the further goals of influencing public opinion and ultimately government agencies and government itself.
So if one is looking for a composite finding, that is it. That gets us to the result, even if one does not apply it as a two‑step process. The same applies to a lesser degree, but it does apply, to what appears in paragraph 5 – the paragraph relied on by my learned friends – where:
The object of Aid/Watch is to promote the effectiveness of aid, both by ensuring that it is delivered where it is intended and by ensuring that its delivery is environmentally effective.
We know what the word “ensuring” means in this case. It does not mean private aid; it does not mean going out oneself to relieve poverty or improve the environment. It means one thing and one thing only: ensuring that government does certain things and does not do certain things. Even if one does not take the two‑step process, we say one gets the result from those paragraphs.
The only class into which the applicant’s purposes can fall, we say, at the end of the day, is the fourth class. In respect of that class, my friend accepts that public benefit must affirmatively be demonstrated. One cannot demonstrate the public benefit of those matters for the various reasons that we have given. So that is the alternative argument which I have dealt with very briefly.
Returning to the overseas position, I have shown your Honour the position in India by reference to the case from Allahabad. In relation to Canada, I was taking your Honour yesterday to the decision in Action by Christians for the Abolition of Torture v Canada 225 DLR (4th) 99. I think your Honours have it. There is a useful discussion at paragraphs [45] and [46] of Jackson v Phillips and the distinction between placing pressure on governments concerning matters and pressure on individual persons.
HEYDON J: Is that the right reference? You said [45] and [46].
MR BENNETT: Paragraphs, I think, your Honour.
HEYDON J: Yes, [45] begins with Mr Justice Slade.
MR BENNETT: Yes, it does, your Honour.
FRENCH CJ: It is not Jackson v Phillips; it is McGovern that is being discussed there, I think, is it not?
MR BENNETT: Yes, your Honour is correct. There is a separate part of the judgment, I think, which refers to ‑ ‑ ‑
GUMMOW J: Paragraph [50].
MR BENNETT: Yes, paragraph [50].
HAYNE J: What is the point we should take from this?
MR BENNETT: I am not taking any particular point, your Honour. I am simply showing that the Canadian cases have applied the McGovern approach in relation to the political exclusion.
HAYNE J: In relation to the application of the particular statute, what are we to take from that?
MR BENNETT: Your Honour, it is the application of a statute, but a statute which involved to a large extent the common law which is adopted by the meaning of the word “charitable”. It is of interest that he accepts a distinction between persuading slave owners to manumit slaves and seeking to get public opinion to change the law and so on.
FRENCH CJ: You have taken us to this yesterday, had you not?
MR BENNETT: I took your Honour to an earlier part. I have not taken your Honour to this particular passage. I remind your Honours of what was said at paragraph [38] where he approved the opinion of Justice of Appeal Strayer in Human Life International that advocacy of opinions on important social issues can never be determined by courts to be for a purpose beneficial to the community. I will take your Honour to the Vancouver Case when I come to education.
The United States, on the other hand, we concede has gone the other way. Your Honours have the passage from Scott on Trusts which shows the way the United States cases went. It is interesting to note that in that country when the political exclusion was largely removed by the courts, the legislature in effect reimposed it. That indicates that it is a matter that the legislature can deal with either way if it chooses and, again, we submit it is not a matter where the Court should take a giant step.
I come to the final part of my submissions, and that is the notices of contention in relation to poverty and education. In relation to poverty, it is worth noting that the evidence shows that the type of aid with which Aid/Watch is concerned is not just overseas aid but also overseas trade and matters related to overseas trade and overseas aid for infrastructure developments and so on. In other words, it is not merely saying that aid to impoverished communities should be environmentally friendly, it is also dealing with aid in a more general way for the construction of infrastructure and arguing for, as the environmental considerations to be borne in mind. It is interesting, there is a document ‑ ‑ ‑
HAYNE J: Are you asserting some disjunction between provision of aid for infrastructure and relief of poverty?
MR BENNETT: Yes, your Honour.
HAYNE J: What is the disjunction?
MR BENNETT: The disjunction is this, your Honour, that infrastructure may assist to relieve poverty, but it would opposed by Aid/Watch if it is contrary to environmental interests. The example is building a dam to provide water to an impoverished village or building a road through a rainforest to it or so on. One does not answer that by the glib statement, which appears in various places, that people in such villages are concerned by and affected by the environment. That involves a judgment which courts are ill equipped to make. There is a document – I will not take your Honours to it, I will just ask your Honours to note it and glance it – it goes from page 289 to page ‑ ‑ ‑
HAYNE J: Sorry, can I go back a stage. Is not the premise for the Australian provision of aid or infrastructure funding that the state to which it is provided cannot and will not do it itself, and cannot and will not do it itself, for want of financial means to do so?
MR BENNETT: Yes, I do not know that the relief of poverty means the relief of countries which have poor exchequers.
HAYNE J: I am just wondering about this disjunction you assert between infrastructure development and the relief of poverty. It may be there at the moment. I do not understand the basis on which the disjunction is drawn.
MR BENNETT: Well, the disjunction exists this way, your Honour. One of the primary purposes, ultimate purposes, which appears in the Constitution is to ensure that aid is respectful of the environment in various ways. It is not hard to imagine, and I have given your Honours some examples, circumstances where having that caveat on aid, may work against providing the aid to poor people who need it.
HAYNE J: Provision of aid usually involves the making of decisions which are contestable, contestable on a number of bases, all of which are open to reasoned debate.
MR BENNETT: Yes, they are, your Honour, but what is said here is that the primary or the main purpose is relief of poverty and we are simply saying that some of the other purposes are antithetical to that or can be antithetical to that in some cases. What is more significant is, it concerns more broadly than with mere aid to relieve poverty, that appears very clearly from page 309 in volume 1 where one sees the words at the top of the page:
AID/WATCH is a community-based, not for profit, activist group that campaigns on Australian involvement in overseas aid and trade projects, programs and policies.
Then there is a reference that is concerned with aid. Then in the next paragraph:
works in conjunction with support partner groups and communities in low‑income countries, predominantly in the Asia‑Pacific, where people are adversely affected by Australian development activities. This may occur through bilateral aid programs, multilateral development banks to which Australia contributes such as the World Bank, the International Monetary Fund and Asian Development Bank, and Australian corporations including the government‑owned Export Finance and Insurance Corporation.
Now, your Honours, how can a court judge the political issues involved there as to whether that is of public benefit or not? We do not make a great deal of the incident that is referred to in the judgment of delivering a birthday cake to the World Bank on its 60th birthday and saying now it is time for you to retire. We accept that that is a harmless piece of humour but there is no doubt that many of its policies are concerned with overall matters which go far beyond questions of poverty and which would be very difficult for a government to judge.
HEYDON J: Mr Bennett, do you know of any evidence, as take, for example, page 282. That is a media release. To which media was the release issued and was it ever published and, for example, that aiding and abetting climate change report, to whom was it circulated, who read it, who got it? Do you know of any convenient place where there is evidence on those things?
MR BENNETT: The answer is an unfortunate one, your Honour. The answer is passim.
HEYDON J: Passim?
MR BENNETT: Passim, yes, your Honour. There is a large quantity of evidence. We have not gone through it for the purposes of the appeal to this Court to list all the matters which might be thought to be particularly political. Certainly, this document contains statements such as at line 36:
The figures detailed in these two reports highlight the Howard Government’s hypocrisy on climate -
et cetera. In paragraph 21 of our submissions we list four examples in the material which are particularly political ‑ ‑ ‑
HEYDON J: I understand that, but how far were these documents circulated? Who read them?
MR BENNETT: I am sorry, your Honour.
HEYDON J: Take the media release; it was to be launched in the presence of Mr Thompson, Senator Nettle and two people from Aid/Watch. Was anyone else there or was Mr Thompson there, do we know?
MR BENNETT: We do not know, your Honour, but a media release, of course, by its nature is intended to be publicised and ‑ ‑ ‑
HEYDON J: But intention can fall short of achievement.
MR BENNETT: Well, achievement, your Honour, of the ultimate purpose or achievement in the purpose of getting the material before the public?
HEYDON J: Purely secret research is probably not within the education head. Aid/Watch might well have liked to have large attention paid to its activities by the public, but was it?
MR BENNETT: Your Honour, I am not aware of evidence on that subject matter, but I will have that checked.
HAYNE J: It was part of your side’s tender bundle, was it not, the document with which we are presently concerned?
MR BENNETT: Yes, your Honour, think it was. It was taken from a website, I think.
HAYNE J: Maybe. It was tendered at page 32, I think, or we see the tender at page 32 of the transcript, do we? Or page 36 of the appeal book?
MR BENNETT: Yes, page 36. It seems to have been a letter from my instructing solicitors to my friend’s instructing solicitors and a reply containing a bundle of documents supplied by my learned friend’s solicitors. But, your Honours, we simply submit that the finding that there was a dominant purpose of relief against poverty cannot be maintained. In relation to education, here one is more concerned with questions of law. There are two primary reasons why this is not educational material within the meaning of the definitions. The first is that it is not material in a subject which contains any form of structure. It is not educational, we will be submitting, simply to give information as such. A journalist who reports the news could not claim charitable status on the basis that it is for the advancement of education to publish the news.
In the Council of Law Reporting Case, of course, it was held that the publication of law reports did not have as its main purpose the advancement of education because, of course, there are other purposes of that activity. A better example for my purposes is the well‑known work by Justice Megarry, Miscellany‑at‑Law. That contains a lot of information, but no one would say it was for the advancement of education.
The second aspect is, we submit, that polemic material is not within the word “education” in the context, and I will take your Honours to some cases on both issues. In relation to the requirement for a degree of structure may I first take your Honours to Lloyd v Commissioner of Taxation (1955) 93 CLR 645, and there is a short passage in the judgment of Justice McTiernan at pages 661 to 662 where – starting with the second sentence in his Honour’s judgment - he says:
The claim that the purposes of the Geelong branch of this organization are “public educational purposes” rests upon the instruction and training which it provides for the youths who join it.
This was a body which had as its purposes the teaching of the history, spirit and traditions of the sea services:
The rules of the central organization contain a curriculum of subjects and activities . . . The constituents of this curriculum are set out in the case states. The principal, if not the only, activity provided in the rules for attaining the aims of the organization is the carrying out of this curriculum. The methods mentioned are classes and camps conducted by officers . . . Looking at the particulars of the curriculum prescribed by the corps for the training of its cadets and at the particulars of the instruction and knowledge imparted by the branch’s instructors and officers to the cadets I think that it is right to describe it as a body whose principal purposes are educational. If the subjects of the programme of instruction are taken individually it may be said with force that instruction in a number of them would not ordinarily be regarded as education. I think that the proper method is to consider the subjects as a combination designed as a preparation for the calling of a sailor and a way of teaching youths its traditions and ideals of service. Viewing the work of the corps in that way I think it is correct to say that its purposes are educational.
FRENCH CJ: This was determining whether or not they fell within a statutory formula in section 8(5) of the Estate Duty Assessment Act, is it not?
MR BENNETT: Yes, it was, your Honour. The particular passage of value is at page 676 where in holding it to be educational Justice Kitto says, starting at line 4:
The training which is the raison d’être of the corps is such as would teach a lad whose ambitions lie towards a sea‑going career some of the rudiments of his intended craft and afford him some intellectual equipment and some stimulus towards further preparation. It is evident, of course, that the majority of the cadets will not be of this kind and will join and continue in the corps for the sake of the interest, and the fun, which they get out of its activities. That fact, however, seems to me to be irrelevant, for it cannot affect the true characterization of the purposes –
Then this is the passage –
Those purposes, seriously pursued as they are by a responsible body acting in an organized and disciplined manner, appear to me to be essentially and predominantly educational.
FRENCH CJ: Does that not just tell us what is sufficient to answer that particular statutory description?
MR BENNETT: Yes.
FRENCH CJ: It does not tell us the boundaries of the class.
MR BENNETT: It does not on its own, your Honour, no. Re Collier [1998] 1 NZLR 81 at page 93, involved a request to promote the ideal of world peace.
GUMMOW J: Just before you do that, Mr Bennett, is there any authority for your proposition in paragraph 70 of your written submissions? It seems to be correct. Are these decisions you are taking us to meant to give some content to this criterion of main or dominant purpose referred to in the heading above paragraph 70?
MR BENNETT: No, your Honour, I was dealing with education rather than poverty at the moment.
GUMMOW J: You repeat it on 74 – “main or dominant purpose”.
MR BENNETT: Yes, 74 is a different argument to the one I am making at the moment; 74 just says, “This is only one of a huge list of purposes”. Independently of that, even within that one, we submit that telling people about how badly aid is administered is not education, any more than a report in the newspaper exposing ministerial corruption or government incompetence or waste. That is not education. It is simply telling people some facts unrelated to any relevant field of study and not really part of it.
If one were doing a history of corruption in Australia over the last 100 years, and one were doing it for that purpose, it might be part of education in relation to that. The analogy here would be simply to attack the current government to say, “Here is some corrupt conduct”. That is simply not education. It may or may not fall into the fourth category, but it does not fall into the education category.
GUMMOW J: I took you away from Justice Hammond and Collier.
MR BENNETT: Yes. The only matter I wanted to remind your Honours of in Justice Hammond’s judgment is at page 93, the top of the page:
But the clause simply advocates the promotion of an idea. It does not actually provide for assistance to any persons, in any way. The clause merely enunciates an objective which, though thoroughly admirable, is surely commonly accepted today. To put it another way, it is an attempt to persuade people into a particular frame of mind. There is no instruction directed; nor is there to be any systematic accumulation of knowledge.
We stress the words “systematic accumulation of knowledge” –
It would be true to say that there are cases in the law reports which have encouraged the “promotion” of something. Perhaps as good an example as any is Royal Choral Society –
Where that was for the advancement of aesthetic education –
And the “study and dissemination of ethical principles and the cultivation of a rational religious sentiment” has been held charitable . . . But, there is a world of difference between that kind of bequest and the single idea which is to be “promoted” by this clause.
Finally, on this part of education there is In re Hopkins’ Will Trusts [1965] 1 Ch 669 – this was the Bacon/Shakespeare manuscripts and at page 680E, after referring to a number of other decisions, Justice Wilberforce, as he then was, says this - this is midway between D and E:
Lord Greene M.R. considered that historic research might fall within the description of “education”. I think, therefore, that the word “education” as used by Harman J. . . . must be used in a wide sense, certainly extending beyond teaching, and that the requirement is that, in order to be charitable, research must either be of educational value to the researcher or must be so directed as to lead to something which will pass into the store of educational material, or so as to improve the sum of communicable knowledge in an area in which education may cover‑education in this last context extending to the formation of literary taste and appreciation.
FRENCH CJ: Mr Bennett, I think the authority we have up here appears to be first instance.
MR BENNETT: I am sorry, your Honour. I have it in my hand. I apologise. I have that bundle of copies. I will not go back to it,
your Honour. I was reading from page 680E to F. The proposition that it must not be polemic appears primarily in an English case called ReBushnell (deceased) (1935) 1 WLR 1596. I have copies for your Honours again. At page 1605 – this was a trust for the advancement and propagation of the teaching of socialised medicine and it was held that the dominant purpose was political, but in relation to education there is a short discussion by Justice Goulding at page 1605 where he says:
I am quite unable to avoid the conclusion that the main or dominant or essential object is a political one. The testator never for a moment, as I read this language, desired to educate the public so that they could choose for themselves, starting with neutral information, to support or oppose what he called “socialised medicine”. I think he was trying to promote his own theory by education, if you will by propaganda, but I do not attach any importance to that word –
et cetera. So one is, we would submit, not within the concept of education if one is simply teaching some facts for the purpose of persuading people towards their certain frame of mind.
BELL J: The definition of “education” there is a quite broad one. One is not talking of some formalised course of study. If one goes back to the findings of the Tribunal, the Tribunal found at appeal book 814, 32 that the publications of Aid/Watch were not mere political pamphlets, they contained much research and scholarship. Then when one goes to the finding of “educational purpose” at paragraph 39, appeal book 817, it is that the dissemination of the results of research was what the Tribunal considered to be the advancement of education.
MR BENNETT: Yes, and the error in those findings, your Honour, they are not really findings of fact because they include within them the assumption that, what one might call, political facts, the facts that the government has distributed aid in a certain way which we consider undesirable, is the proper subject of research and persuading people that it is education within the meaning of the authorities and it is simply not. The word “research” is used but it is no more research than a journalist investigating government corruption.
BELL J: That may well be so, but from those passages in the Tribunal’s reasons, those matters are not apparent to me.
MR BENNETT: Well, your Honour, they are apparent when one reads the reasons as a whole and one sees what the research is. We know what the research is. No one suggests the research is anything other than looking at where aid has gone and then saying that is damaging the environment or being wasted in some way or going to Australian companies to do the work. That, your Honour, is simply not education. One can use the word “research” for lots of things but simply using the word “research”, or even the words “scholarly research”, does not make it education. That is just an ultimate conclusion of value judgment.
BELL J: Well, Mr Bennett, that is your conclusion. I am simply looking at what the Tribunal said, distinguishing between what it characterised as political pamphlets and material that it described as containing research and scholarship.
MR BENNETT: Yes. There is no suggestion, your Honour, the research was other than research into where Australian aid goes combined with expressions of opinion about how undesirable that is. There is no suggestion of any other research. Using the word does not make it education. A reporter who reports a fact may say he is educating society, educating people. The word “education” could be used colloquially in all sorts of senses.
BELL J: In the passage that you took us to in Bushnell, I understood his Honour to accept that the provision of neutral information by way of educating the public so that people are in a position to come to a view on the basis of that material might qualify for the descriptor advancing education. If that be so, it is not clear to me that scholarly analysis of where Australia’s aid goes may not constitute the provision of information of that character having the potential to be educative if it is right to see education in that broad way.
MR BENNETT: Well, your Honour, but here we know that the purpose of providing it is to persuade a person, persuade people, to a particular point of view. There are many situations in which the provision of selected information can be part of a polemic campaign rather than anything else. The Anti‑Pornography Case in Canada was a good example of that. If one takes the topic of abortion, one can well imagine supplying a lot of information which would totally favour free choice or one could supply a lot of information that would totally favour those who are opposed to abortion. The mere provision of that information, information on the one hand about the viability of a foetus or on the other hand about the damage to the lives of unwilling mothers, would not be education. That is not the provision of neutral information for the purpose of educating people, it is just trying to persuade them to a point of view. The cases make it clear that is not what we are talking about with education.
The Henry George Case was on the borderline, but one can well imagine that the study of the works of Marx or the study of the works of Henry George or, for that matter, of Hitler might be genuine historical and intellectual research, but it could also be taught in a way which was polemic and which would not be educational if it were taught for the purpose simply of advocating socialism or Nazism or whatever. Education does not consist of persuading; that is not education. In the religious context it may be different, but we can leave aside the religious context for this purpose. This is not part of any organised body of knowledge, it is simply information about what the Government is doing and maybe one has to engage in research to ascertain that, but that does not make it education, and, your Honour, that in our respectful submission, is the reason why that part of the notice of contention should be upheld.
Your Honours, may I, before I sit down, simply say that I formally adopt all the material in my written submissions. If I have omitted anything it is not intentional and, in particular, may I remind your Honours that in the written submissions there are two matters as to which we are accused of making concessions, which we dispute making, and in each case the footnotes give your Honours chapter and verse of the references to the so‑called concessions and ‑ ‑ ‑
GUMMOW J: Which paragraphs in your submissions?
MR BENNETT: Your Honours, paragraph 10 of our submissions deals with an alleged concession that the appellant’s objects are not contrary to government policy, but we say, in any event, that does not matter for the
reasons I gave, that advocating status is in the same category as advocating change.
HEYDON J: That footnote reference, is that to the Full Court transcript?
MR BENNETT: Yes, your Honour.
HEYDON J: We do not have that, do we?
MR BENNETT: I think it is to where the concession is said to come from and it is for the purpose of showing that it does not.
HEYDON J: Is that in the appeal book?
MR BENNETT: I will have that checked, your Honour, and I will deal with that in a moment. The other one is at paragraph 11 of our submissions where we say that we have not conceded that the main or dominant purpose was the relief of poverty. We have not given chapter and verse for that because it is a negative statement and we simply say if my friend says we did concede that, let him show us where, but we would dispute it. I do not want to spend time on those matters, they are both fairly minor. The case does not turn on whether some concession was made at some point.
Yes, I have the relevant pages of the transcript, your Honour, for the first one which I hand to your Honours. We have given your Honours the pages. Those are the pages we think are relied on for the purpose of saying we made the concession and we say they do not contain it. It is not a matter of great importance in either case. Your Honours, those are our submissions.
FRENCH CJ: Thank you, Mr Bennett. Yes, Mr Williams.
MR WILLIAMS: During the course of my friend’s address there was reference to Lange and your Honour Justice Gummow referred specifically to pages 557 to 560. May I also invite your Honour’s attention to page 571 where perhaps the thoughts that are reported earlier in the judgment are brought together. It is 571, point 5 to 7. It is the passage commencing:
Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters.
The quote goes on; I do not need to read it aloud. The way we utilise this principle is in connection with the notion that discussion about the way in which government is going about doing its work is in some way off limits for the court. We submit that the courts have now well recognised that the giving and receiving of information about government and political matters is, indeed, for the public benefit.
Bringing that notion closer to the facts of this particular case, we draw your Honours’ attention to the passage that we have quoted from Justice McHugh’s judgment in paragraph 84 of our written submissions because that brings together the notions of the public benefit in the exchange of information with the way in which government exercises its functions and powers and the legitimate and real interest of every member of the community in how that is done. So, for instance, in the delivery of aid, the community has an interest in knowing about how the aid dollar is spent and, indeed, that it is spent effectively. His Honour goes on to say information concerning the exercise of those functions and powers is of vital concern to the community.
Can I next deal with the question of purpose trusts and whether there is any need for the evaluative assessment? Can I draw your Honours’ attention to a case that we have not as yet cited, but it is a decision of this Court in Nelan v Downes (1917) 23 CLR 546. It is a case about the religious class. The particular passages that I invite your Honours’ attention to ‑ ‑ ‑
GUMMOW J: In these cases there is no inquiry as to whether it is effective.
MR WILLIAMS: That is right. It is 559. I can give your Honours just the references. Justice Barton, 559, point 7 to the bottom of the page. Justice Powers at 574 from point 7 on the page to the foot of the page. In that latter quote his Honour says this:
“the Court does not enter into an inquiry as to the truth or soundness of any religious doctrine, provided it be not contrary to morals, or contain nothing contrary to law. All religions are equal in the eye of the law, and this especially applies since the abolition in this country of a State Church. Whether the subject of the gift be religious or for an educational purpose, the Court does not set up its own opinion. It is enough that it is not illegal, or contrary to public policy, or opposed to the settled principles of morality.”
GUMMOW J: Now, what do you try and get out of Nelan?
MR WILLIAMS: What I get out of this, your Honour, is that it is not necessary when considering the question of public benefit for the Court to enter into an examination of whether, for instance, the views that Aid/Watch might hold about any particular topic, say, boomerang aid, whether that is right or wrong. The mere fact that ‑ ‑ ‑
FRENCH CJ: Well, at some level you have to – if you are talking class four you have to identify a public benefit though, do you not?
MR WILLIAMS: You certainly do in class four. The public benefit arises in the way in which debate about matters to do with ‑ ‑ ‑
FRENCH CJ: Yes, we understand your submission on that.
MR WILLIAMS: Yes, well, I will not go any further with that.
In relation to the public benefit issue, particularly in the first three classes, your Honour Justice Heydon raised in argument yesterday this question of whether or not there was an assumption of public benefit in those classes. There are certainly statements of principle in case law to suggest that that is the case. Congregational Union of NSW v Thistlethwayte (1952) 87 CLR 446 is one of the examples. But probably the way in which the question should be analysed is as follows.
When one is considering the question of whether or not it is necessary to show a public benefit, it is necessary to keep in mind why it was and how it was that the four classes came to exist in the first place and, really, the classification into the first three classes involved this notion that trusts or gifts falling within those classes inherently involved matters of public interest. It is in that sense that the courts use the terminology that public benefit is assumed, sometimes they say prima facie is a public benefit, because it is inherent in the nature of the relief of poverty, the advancement of education or the advancement of religion that there is public benefit inuring in those objects.
Of course, one can get extreme examples where it might be possible to, theoretically at least, fall into one of those classes but the courts would say, well, there is not the requisite public element. The Ku Klux Klan involved in so‑called educational material that incited racial hatred, or something of that nature, claimed that that was educational – documents that looked like they had been researched and the like. The court may say, well, it is a case where the public benefit should not be assumed because it is not for public benefit to have that sort of material masquerading as education.
Here, of course, the public benefit is very easy to identify. The way in which the Tribunal approached the matter, we would respectfully say, is the correct one. The Tribunal was examining the purposes of the organisation, finding that it had to do with the relief of poverty and the advancement of education. The Tribunal then said that even if strictly speaking it does not fall within those classes when those areas are the subject of the area of discourse with which it is involved, it is not difficult to see why there would not be public benefit in those sorts of activities. The particular passage that I had in mind is at paragraph 41 of the Tribunal’s judgment at page 818. After the finding that the objects and activities of Aid/Watch largely satisfied the first and second divisions of Lord Macnaghten’s categories, his Honour said:
Being so closely associated to two longstanding and fundamental tests of charitableness, it will not be surprising if they also satisfy the fourth division.
He goes on in paragraph 42 to deal with the statement that:
Not all beneficial purposes will satisfy the fourth division. However, it seems to me that promoting the most advantageous delivery of aid comfortably falls within the fourth division to the extent that it is outside the first and second divisions.
He then notes how public infrastructure projects are dealt with in the Statute of Elizabeth. Given that the law recognises the benefit in the dissemination and receipt of information, opinions and arguments concerning government and political matters and given the matters with which Aid/Watch is concerned, we would respectfully submit that the public benefit is obvious. An inquiry about public benefit does not involve descending into the details of whether or not particular views held by an organisation are right or wrong.
Before I come to the contention matters there are just two small topics that I should address. The effect of the Canadian authorities is that anything that intersects with the role of government is being labelled as political and, therefore, it falls within this political objection ‑ ‑ ‑
GUMMOW J: In reading the Canadian cases one has to have some fairly close attention to the statutory provisions, which are very detailed.
MR WILLIAMS: That is so, but ‑ ‑ ‑
GUMMOW J: Which are set out in Vancouver at page 90. The question is are there political activities? Are they “ancillary and incidental” or more than “ancillary and incidental”? If they are more than “ancillary and incidental”, no tax status.
MR WILLIAMS: That is right, but the statute does not define what political is and the thrust of the Canadian cases is that basically anything that intersects with the role of government falls within that category. In other words a populist sort of notion of what “political” means. Of course, that approach leads to conclusions that a large number of activities that might not be seen in this country as being political in the relevant sense are in Canada. I say not in this country because that approach has been firmly rejected by this Court in Royal North Shore Hospital in the passages that I took your Honours to yesterday.
The last miscellaneous matter – your Honour Justice Crennan raised a question about Aid/Watch in its position in relation to water in the World Bank. May I just give your Honours a reference to where the evidence as to what Aid/Watch does and why in that connection is to be found. It is in the affidavit of Mr Goodman. It is at page 171 of the appeal book, between paragraphs 20 and 22. It indicates that the concern of Aid/Watch had been that there were cases where the privatisation of publicly owned water utilities was made a precondition of access to development finance.
In paragraph 22, the activities with which it was involved were aimed at achieving the purpose of ensuring that the developmental assistance meets local needs, rather than externally imposed prescriptions of the World Bank. In paragraph 21, perhaps to deal with a question that was raised yesterday, Aid/Watch detected a shift in the position of the World Bank to address the concerns that it had raised.
HEYDON J: There is one other miscellaneous thing. Yesterday, I think you were going to give us a piece of paper containing an account of which parts of the affidavits were admitted and which were not.
MR WILLIAMS: We have that and the agreed position now would be between both parties.
HAYNE J: While that is being distributed, can I just take you back to North Shore and that quite difficult passage from Justice Dixon’s reasons in North Shore at page 426. Can I put to you that a way of approaching the passage and, more importantly, the ideas underlying the passage could be put in this fashion: one, contribution to public welfare is the underpinning or informing idea that unites the four heads of charity, so contribution to public welfare. His Honour identifies that contrariety to established policy of the law would be contrary to contribution to public welfare. That is the first example given.
Then, in dealing with what has come to be lumped as a general idea of political ideas, a way of reading what is said there is to observe that agitation for legislative change may present a question about contribution to public welfare because it may present the same general sort of contrariety between object – agitation for legislative change – and existing law. Likewise, pursuit of political ends, whether in the form of pursuit of the adoption of a general political platform or pursuit of a political end in the form of pursuit of a specific policy end, may again present some question of contrariety, whether in the form of contrariety between policy of the law, contrariety with existing law, but at least a difficulty of identification of general public welfare.
As I understand a way in which your side of the case is put, it is that Aid/Watch does not pursue a political end in the sense of seeking the adoption of a general policy platform, or even of a specific policy end. It seeks to generate debate about how poverty is best relieved. Is that right?
MR WILLIAMS: That is right.
HAYNE J: I would understand you to say that that so understood, the object of Aid/Watch, generation of debate about how to relieve poverty, does not present questions of contrariety of the kind that Justice Dixon identified in North Shore, is that right?
MR WILLIAMS: That is so. Just to give your Honours an evidentiary basis for some of the thoughts that lay behind your Honour’s propositions, at appeal book 55 Mr Goodman was being challenged about whether the organisation was seeking to push the government to do particular things by reference to a line that had appeared in one of the statements of the organisation and then between points 1 and down to 40 on the page, he explains how there is no particular platform that is being pushed but what is sought to be done is to present the arguments. One gets that between lines 30 and 40 in the bold type and between lines 29 and 30 in the other type.
So it is not like a political party, for instance, that has a platform that it wishes to go out and pursue. Aid/Watch is doing things on a case by case basis. When we come back to the quote that is in the judgment from Mr Goodman’s evidence – this is at page 812 – one sees how it works. I think there is an answer to your Honour Justice Heydon’s question about how these things are published to be found in that part of the judgment as well.
HEYDON J: What is that reference again, I am sorry?
MR WILLIAMS: It is page 812.
HEYDON J: So it will be in that long answer in‑chief?
MR WILLIAMS: It is. One finds it at about line 50. The three stages are described. At about line 50:
the third dimension of our activity, as it were – those reports were then published in Australia. So the information that we are gathering we gather generally in relation to the impacts of aid programs offshore, as it were, and bring that into the Australian context by publishing these reports which are then obviously available publicly or generally for free on the net and we’ll have a launch of some sort, some public event, where we’ll draw together people, for instance, at a university or in some public venue, draw together our members and other interested people and publicise the event.
Sometimes these launches will involve bringing over a local community member from overseas. There is a little bit more about the way in which that works in the parts of the evidence that follow immediately following from that. Can I just give your Honours some appeal book references. The quote that was taken was taken from page 43 and then over the next few pages through to 55, which is where I just directed your Honours’ attention to, is a discussion of how that all works in practice.
Finally then, your Honours, dealing with the notice of contention, we respectfully adopt what has been said by the Tribunal and the Full Federal Court in relation to those matters and there is no need for me to take you to the authorities. The ones we rely on are the ones that are already set out in those judgments. The fact is that through the three‑pronged activities of research and monitoring and campaigning, the publications, such as the one I took your Honour to the other day “Fighting Poverty” disseminated into the community and the contribution that they are capable of making to the debate is obvious when one looks at an examination of how the aid dollar is spent, a consideration of what might be done better, considerations as to whether there are unintended consequences that flow from the way in which the aid program is administered and works in practice, are matters that are capable of giving rise to improvements.
The very fact that one investigates and researches and publishes the results of that research means that the public is better informed, and indeed, potentially the government and whoever else in involved in that process. So far as the relief of poverty is concerned, one sees a very close alignment between the way in which the government describes its own priorities in relation to the delivery of aid with the objectives of Aid/Watch and I took your Honours to it yesterday. Can I just give your Honours the reference again for where the government policy is actually set out? The AusAID
policy is at page 189 of the appeal book and the link between aid and poverty is expressly there made at page 198, line 50:
The aim of the program is to assist developing countries reduce poverty and achieve sustainable development, in line with Australia’s national interest.
Also I took your Honours to it yesterday, one finds similar statements about measuring the effectiveness at page 204 at about point 10.
GUMMOW J: Page 204?
MR WILLIAMS: Page 204 at point 10: This is the same document, “Recent years have seen international debate about evaluation of aid programs”. That is the passage that I took your Honours to yesterday. That involves making credible the valuations of how effective or otherwise the aid program is. It is evidence of that nature, I have not taken your Honours to all of it, but it is evidence of that nature that gave rise to the finding that we had before the Tribunal that Aid/Watch’s objectives were consistent with government policy. So, yes, there are, no doubt, instances where Aid/Watch is critical of particular things that have happened or ways in which the government goes about things, but it is more of a question of holding the government to the standards that it is articulated for itself. We would submit that that is properly to be seen as being in the public benefit. They are our submissions.
FRENCH CJ: Yes, thank you, Mr Williams. Court will reserve its decision. The Court will adjourn to commence hearing of the next matter at 2.00 pm.
AT 12.08 PM THE MATTER WAS ADJOURNED
6
5
0