MURCHISON REGION ABORIGINAL CORPORATION and SHIRE OF YALGOO
[2018] WASAT 17
•12 MARCH 2018
MURCHISON REGION ABORIGINAL CORPORATION and SHIRE OF YALGOO [2018] WASAT 17
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2018] WASAT 17 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:206/2017 | 11 DECEMBER 2017 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) MS L EDDY (MEMBER) | 12/03/18 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | Objection to rate record allowed | ||
| B | |||
| PDF Version |
| Parties: | MURCHISON REGION ABORIGINAL CORPORATION SHIRE OF YALGOO |
Catchwords: | Local government Rating Objection to rate record Whether land used exclusively for charitable purposes Housing for Aboriginal and Torres Strait Islander people Whether applicant has proved that tenants are Aboriginal Whether Aboriginal and Torres Strait Islander people in need of assistance in relation to housing Whether necessary to show each tenant in need of assistance in relation to housing Whether necessary to also show each property rented so as to generate no surplus in rating year Whether necessary to show each property rented at less than market rent |
Legislation: | Local Government Act 1993 (NSW), s 556(1)(h) Local Government Act 1995 (WA), s 6.26(1), s 6.26(2)(g), s 6.76(1)(a)(ii), s 6.77 State Administrative Tribunal Act 2004 (WA), s 32(2), s 66(1), s 87(1), s 87(2), s 87(4) Statute of Charitable Uses 1601 (Imp) (43 Eliz I, c 4) |
Case References: | Aboriginal Hostels Ltd v Darwin City Council (1985) 55 LGRA 414 Alice Springs Town Council v Mpweteyerre Aboriginal Corporation & Ors (1997) 115 NTR 25 Bodalla Aboriginal Housing Co Ltd v Eurobodalla Shire Council [2011] NSWLEC 146; (2011) 184 LGERA 315 City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466 Medical Board of Australia and Woollard [2012] WASAT 209 Murray Darling Community Care Incorporated v Wentworth Shire Council [2000] NSWLEC 236; (2000) 111 LGERA 345 R v War Pensions Entitlement Appeal Tribunal & Anor; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206 Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108 |
Orders | For the reasons stated above, the Tribunal makes the following orders:,1. The application for review is allowed.,2. The respondent's decision to disallow the applicant's objection to the rate record for land located at:,(a) No 52 Campbell Street, Yalgoo;,(b) No 25 Henty Street, Yalgoo;,(c) No 91 Henty Street, Yalgoo;,(d) No 92 Henty Street, Yalgoo;,(e) No 83 Milligan Street, Yalgoo;,(f) No 87 Milligan Street, Yalgoo; and,(g) No 29 Selwyn Street, Yalgoo,,for the year ending 30 June 2017, is set aside and a decision is substituted that the objection is allowed on the basis that there is an error in the rate record as all of that land is not rateable land, because it is used exclusively for a charitable purpose.,3. The respondent's application for costs is dismissed. |
Summary | The Murchison Region Aboriginal Corporation (MRAC) is a notforprofit organisation that provides housing to Aboriginal and Torres Strait Islander people in the MidWest and Gascoyne regions of Western Australia. In September 2016, the Shire of Yalgoo issued rates notices to MRAC for the year ending 30 June 2017 in relation to seven properties owned by MRAC located within the Shire (Yalgoo properties). MRAC objected to the rate record on which those rates notices were based on the ground that all of the Yalgoo properties were used exclusively for a charitable purpose, namely to provide housing to Aboriginal people. These proceedings concerned the review of the Shire's disallowance of that objection.,The Shire contended that in order to establish that each of the Yalgoo properties was used exclusively for a charitable purpose, it was necessary for MRAC to prove that each property is leased to an Aboriginal person and that each tenant is a person specifically in need of assistance in relation to housing. In addition, the Shire submitted that MRAC must prove that each of the properties is rented in such a way as not to generate a surplus in any rating year and at less than market rent, in order to establish that it is used exclusively for a charitable purpose. ,The Tribunal found the following facts proved by MRAC on the evidence before it:,1. The tenants of each of the Yalgoo properties are Aboriginal people.,2. All of the Yalgoo properties are leased on a cost-recovery only basis, although two of the properties made a small surplus in the rating year in question (primarily due to scheduling and when works are invoiced).,3. Aboriginal and Torres Strait Islander people living in Western Australia, and in particular in rural Western Australia, are, as a class, significantly disadvantaged in the area of housing and in special need of assistance in relation to obtaining and retaining safe, functional and appropriate housing, when compared with nonIndigenous Australians.,4. MRAC is a notforprofit organisation providing housing to Aboriginal and Torres Strait Islander people and does not rent any of the Yalgoo properties with the intention of generating a profit.,The Tribunal determined that the use of each of the Yalgoo properties to provide housing to Aboriginal people, by a notforprofit organisation and on a cost-recovery only basis, is a 'charitable purpose' at law and that the land was exempt from rating as it was used exclusively for that charitable purpose at the relevant time. It was not necessary for MRAC to prove that each tenant is specifically in need of assistance in relation to housing. It was also not necessary for MRAC to prove that each property is rented in such a way as not to generate a surplus in any rating year or at less than market rent.,The Tribunal therefore set aside the Shire's decision to disallow MRAC's objection to the rate record for the year ending 30 June 2017 and substituted a decision that the objection is allowed on the basis that there is an error in the rate record as all of the land the subject of the objection is not rateable land, because it is used exclusively for a charitable purpose. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : MURCHISON REGION ABORIGINAL CORPORATION and SHIRE OF YALGOO [2018] WASAT 17 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT)
- MS L EDDY (MEMBER)
- Applicant
AND
SHIRE OF YALGOO
Respondent
Catchwords:
Local government - Rating - Objection to rate record - Whether land used exclusively for charitable purposes - Housing for Aboriginal and Torres Strait Islander people - Whether applicant has proved that tenants are Aboriginal - Whether Aboriginal and Torres Strait Islander people in need of assistance in relation to housing - Whether necessary to show each tenant in need of assistance in relation to housing - Whether necessary to also show each property rented so as to generate no surplus in rating year - Whether necessary to show each property rented at less than market rent
Legislation:
Local Government Act 1993 (NSW), s 556(1)(h)
Local Government Act 1995 (WA), s 6.26(1), s 6.26(2)(g), s 6.76(1)(a)(ii), s 6.77
State Administrative Tribunal Act 2004 (WA), s 32(2), s 66(1), s 87(1), s 87(2), s 87(4)
Statute of Charitable Uses 1601 (Imp) (43 Eliz I, c 4)
Result:
Objection to rate record allowed
Summary of Tribunal's decision:
The Murchison Region Aboriginal Corporation (MRAC) is a notforprofit organisation that provides housing to Aboriginal and Torres Strait Islander people in the MidWest and Gascoyne regions of Western Australia. In September 2016, the Shire of Yalgoo issued rates notices to MRAC for the year ending 30 June 2017 in relation to seven properties owned by MRAC located within the Shire (Yalgoo properties). MRAC objected to the rate record on which those rates notices were based on the ground that all of the Yalgoo properties were used exclusively for a charitable purpose, namely to provide housing to Aboriginal people. These proceedings concerned the review of the Shire's disallowance of that objection.
The Shire contended that in order to establish that each of the Yalgoo properties was used exclusively for a charitable purpose, it was necessary for MRAC to prove that each property is leased to an Aboriginal person and that each tenant is a person specifically in need of assistance in relation to housing. In addition, the Shire submitted that MRAC must prove that each of the properties is rented in such a way as not to generate a surplus in any rating year and at less than market rent, in order to establish that it is used exclusively for a charitable purpose.
The Tribunal found the following facts proved by MRAC on the evidence before it:
1. The tenants of each of the Yalgoo properties are Aboriginal people.
2. All of the Yalgoo properties are leased on a cost-recovery only basis, although two of the properties made a small surplus in the rating year in question (primarily due to scheduling and when works are invoiced).
3. Aboriginal and Torres Strait Islander people living in Western Australia, and in particular in rural Western Australia, are, as a class, significantly disadvantaged in the area of housing and in special need of assistance in relation to obtaining and retaining safe, functional and appropriate housing, when compared with nonIndigenous Australians.
4. MRAC is a notforprofit organisation providing housing to Aboriginal and Torres Strait Islander people and does not rent any of the Yalgoo properties with the intention of generating a profit.
The Tribunal determined that the use of each of the Yalgoo properties to provide housing to Aboriginal people, by a notforprofit organisation and on a cost-recovery only basis, is a 'charitable purpose' at law and that the land was exempt from rating as it was used exclusively for that charitable purpose at the relevant time. It was not necessary for MRAC to prove that each tenant is specifically in need of assistance in relation to housing. It was also not necessary for MRAC to prove that each property is rented in such a way as not to generate a surplus in any rating year or at less than market rent.
The Tribunal therefore set aside the Shire's decision to disallow MRAC's objection to the rate record for the year ending 30 June 2017 and substituted a decision that the objection is allowed on the basis that there is an error in the rate record as all of the land the subject of the objection is not rateable land, because it is used exclusively for a charitable purpose.
Category: B
Representation:
Counsel:
Applicant : Mr M McKenna and Ms J Edmeades
Respondent : Ms S Patel and Ms Y Tan
Solicitors:
Applicant : Gilbert + Tobin Lawyers
Respondent : Civic Legal Pty Ltd
Case(s) referred to in decision(s):
Aboriginal Hostels Ltd v Darwin City Council (1985) 55 LGRA 414
Alice Springs Town Council v Mpweteyerre Aboriginal Corporation & Ors (1997) 115 NTR 25
Bodalla Aboriginal Housing Co Ltd v Eurobodalla Shire Council [2011] NSWLEC 146; (2011) 184 LGERA 315
City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466
Medical Board of Australia and Woollard [2012] WASAT 209
Murray Darling Community Care Incorporated v Wentworth Shire Council [2000] NSWLEC 236; (2000) 111 LGERA 345
R v War Pensions Entitlement Appeal Tribunal & Anor; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206
Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108
Introduction
1 Section 6.26(1) of the Local Government Act 1995 (WA) (LG Act) states that '[e]xcept as provided in this section all land within a district is rateable land'. Section 6.26(2)(g) of the LG Act states that 'land used exclusively for charitable purposes' is 'not rateable land'. Under s 6.76(1)(a)(ii) of the LG Act, a person may 'object to the rate record of a local government on the ground … that there is an error in the rate record … on the basis that the land or part of the land is not rateable land'.
2 The Murchison Region Aboriginal Corporation (MRAC) is a notforprofit organisation which provides 'safe, secure and affordable housing' to Aboriginal and Torres Strait Islander people in the MidWest and Gascoyne regions of Western Australia. Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [5]. MRAC's objectives include to:The rule book of Murchison Region Aboriginal Corporation registered on 2 December 2016; Respondent's Section 24 bundle of documents (Exhibit 5) tab 3 page 81.
• promote, support, sponsor, engage in and facilitate the provision to Aboriginal people of health, housing and other services [and]
• acquire, hold and manage land, buildings, fixtures, chattels and other property for the benefit of Aboriginal people in the Midwest and Gascoyne regions. …
3 In or around September 2016, the Shire of Yalgoo (Shire) issued rates notices to MRAC for the year ending 30 June 2017 in relation to seven properties owned by MRAC within the district of the Shire, namely No 52 Campbell Street, Yalgoo, No 25 Henty Street, Yalgoo, No 91 Henty Street, Yalgoo, No 92 Henty Street, Yalgoo, No 83 Milligan Street, Yalgoo, No 87 Milligan Street, Yalgoo and No 29 Selwyn Street, Yalgoo (Yalgoo properties).
4 On 1 March 2017, MRAC applied to the Shire for an extension of the 42 day period from the service of the rates notices in which it could object to the rate record on which those rates notices were based, on the ground that all of the Yalgoo properties were used exclusively for a charitable purpose at the relevant time.
5 The Shire considered MRAC's objection on 9 May 2017. The Shire implicitly extended the time in which MRAC could object to the rate record and resolved to disallow its objection.
6 On 23 June 2017, MRAC applied to the Tribunal for a review of the Shire's decision on its objection to the rate record, pursuant to s 6.77 of the LG Act.
7 In this proceeding, the Shire maintains that MRAC's objection to the rate record should be disallowed, because MRAC has failed to establish that each of the Yalgoo properties was, at the relevant time, used exclusively for a charitable purpose.
8 The Shire submits that MRAC has not established, as a matter of fact, that each of the Yalgoo properties is leased to an Aboriginal person. The Shire also submits that MRAC has not proved that each of the Yalgoo properties is rented to a person who is in need of assistance in relation to housing. The Shire submits that it is necessary for MRAC to prove this second fact, because, although judicial notice can be taken of the fact that Aboriginal Australians will generally be in need of assistance in relation to housing, MRAC must prove that each of the tenants of the Yalgoo properties is in fact 'in need' in order to establish that each property is being used for a charitable purpose.
9 Furthermore, the Shire submits that, as a matter of law, MRAC must demonstrate that each of the Yalgoo properties is rented on a costrecovery only basis and in such a way as not to generate a surplus in any rating year, in order to establish that each property is used exclusively for the charitable purpose of providing housing to Aboriginal people. To the extent that any of the Yalgoo properties generated a surplus over what is necessary for costrecovery in the rating period, the Shire submits that this necessarily means that it cannot be established that any such property is used exclusively for this charitable purpose. The Shire also submits that, in order for a property to be used exclusively for this charitable purpose, the rent charged must be less than market rent.
10 MRAC's position is that the provision of housing exclusively to Aboriginal people is a charitable purpose, whether or not it is established that a property is leased to a person who is specifically identified as being 'in need' of assistance in relation to housing. MRAC contends that this is because Aboriginal people are particularly in need of housing assistance and the provision of housing to alleviate that need constitutes a charitable purpose.
What is meant by 'land used exclusively for charitable purposes'?
11 The expression 'charitable purposes' is not defined in the LG Act. However it is well settled (and not in dispute) that the word 'charitable' in s 6.26(2)(g) of the LG Act bears its technical legal meaning, rather than its popular or normal meaning. A purpose is 'charitable' at law if it falls within the 'spirit and intendment' of the Preamble to the Statute of Charitable Uses 1601 (Imp) (43 Eliz I, c 4), which is often referred to as 'the Statute of Elizabeth'.
12 As the Court of Appeal recently explained in City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466 (Mandurah v Australian Flying Corps) (Buss P, Martin CJ [1] and Newnes JA [96] agreeing) [42] [45] and [48] (citations omitted):
The practice of the courts has been to determine, by reference to the Preamble to the Statute of Charitable Uses,whether a purpose is charitable in law. The Preamble does not contain a definition of charitable purposes. Rather, it lists numerous purposes. Those purposes and all other purposes which, by analogy, 'are deemed within [the Preamble's] spirit and intendment' are, in law, charitable. …
The spirit and intendment of the Preamble should not be given a narrow or archaic construction. Also, the understanding of judges in the community in which they live of what a particular activity involves may be accepted as a proper understanding of the nature of that activity. …
The legal concept of charitable purposes must be ascertained from 'the conditions of the [contemporary] age' and an historical review reveals 'the ever widening scope' of purposes which are charitable in law … The range of charitable purposes is dynamic, not static.
In Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, Lord Macnaghten noted that a technical legal meaning is attached to the word 'charity', and to the word 'charitable' in such expressions as 'charitable purposes' (at 580). His Lordship discussed the technical legal meaning of 'charitable' by reference to the Preamble, and classified charity in its legal sense into four principal divisions; namely, 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 (at 583).
….
In my opinion, the word 'charitable', in the undefined expression 'charitable purposes' in s 6.26(2)(g) of the LG Act, bears its technical legal meaning by reference to the Preamble or the four principal divisions stated by Lord Macnaghten in Pemsel. That reflects the general rule that, 'charitable' having a technical legal meaning, the word is to be understood in its legal sense when used in a statute (by reference to its source in the general law as it is developed in Australia from time to time), unless a contrary intention appears. … No contrary intention appears in s 6.26 or any other provision of the LG Act.
13 Furthermore, as Wheeler J said in Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108 (Ashburton v Bindibindi) [14] (citations omitted):
The focus of the exemption in the [LG] Act is upon the use of land rather than upon its ownership … [U]nder the Act, as under its predecessor, the LocalGovernment Act 1960, the question is whether the land is used and occupied exclusively for charitable purposes, whether or not it is owned by an institution which may be classified as a charitable institution. The objects of the institution owning the land may throw some light upon the use but they are by no means conclusive … Although the statute provides that the land must be used and occupied 'exclusively' for charitable purposes in order to benefit from the exemption, authority establishes that land will be used exclusively for such a purpose 'if its main purpose was charitable although it might have other purposes which were merely concomitant and incidental to that purpose' …
Evidence and findings of fact as to the use of the Yalgoo properties
14 MRAC presented evidence in two affidavits by Mary Elizabeth Marshall, the Chief Executive Officer of MRAC. MRAC did not call Ms Marshall to give further oral evidence and the Shire did not seek to crossexamine Ms Marshall in relation to any of her evidence.
Aboriginality of the tenants of the Yalgoo properties
15 As indicated earlier, the Shire submits that MRAC has not proved on the evidence that each of the Yalgoo properties is leased to an Aboriginal person.
16 Ms Marshall's evidence is that MRAC has a housing eligibility policy, which, during the rating year in question, required all applicants for housing to be Aboriginal, Torres Strait Islander, a person who has a partner who is either Aboriginal or Torres Strait Islander, or a person with custody of Aboriginal children.
17 Ms Marshall gave the following evidence: Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [22].
Aboriginality is a matter of social recognition as much as it is of descent. Most of [the] applicants for MRAC's housing are from the local area, and are therefore known to be Aboriginal within the local community. … [I]n the rare case that an applicant is not apparently Aboriginal or is from another State or Territory, the applicant is asked to provide confirmation of Aboriginality to the MRAC Board. The application will not succeed if the applicant is unable to provide sufficient proof of their Aboriginality.
18 Ms Marshall also gave evidence that '[o]ne application in the past 12 months was not accepted[,] because the applicant was unable to demonstrate or provide evidence of their Aboriginality'. Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [23].
19 Ms Marshall said that 'I am certain that at least one tenant in each [of the Yalgoo properties] is (and, at the time that the properties were rated, was) Aboriginal or Torres Strait Islander, as required by the eligibility criteria'. Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [26]. Ms Marshall's 'certainty' is based on her belief that MRAC followed the procedures set out in its housing eligibility policy at the time when the various leases were entered into.
20 In her supplementary affidavit, Ms Marshall states that MRAC has had an official housing eligibility policy since its inception. Although the terms of those policies changed somewhat over time, Ms Marshall states that eligibility for MRAC's housing always required that the tenant be an Aboriginal person. Ms Marshall gave the following evidence: Affidavit of Mary Elizabeth Marshall sworn 1 December 2017 (Exhibit 2) [12] [13].
I consider and approve all applications to ensure that the applicant meets the eligibility criteria, including the Aboriginality requirement. Where any doubt exists in relation to an applicant's Aboriginality, proof of Aboriginality is sought before the application is approved. Aboriginal housing is a limited resource and MRAC seriously investigates whether or not an applicant is Aboriginal prior to approving an applicant to the waiting list.
Although I was not CEO of MRAC when six of the seven tenants of the [Yalgoo] [p]roperties applied for tenancies, I know all of the tenants of the [Yalgoo] [p]roperties are Aboriginal because Mr Colin Hamlett, the MRAC ViceChairperson and an Elder of the Wadjarri community has confirmed, and I believe, that all of the Yalgoo tenants are Aboriginal as they are either related to him, related to his wife or related by marriage.
21 The Shire submits that Ms Marshall's evidence must be understood in the context that she only commenced in her role with MRAC on 12 October 2015. This was well after all except one of the tenancy agreements in relation to the Yalgoo properties were entered into. The Shire submits, further, that Ms Marshall makes statements in her affidavits which are unsupported conclusions or hearsay, and therefore that this evidence should not be given any probative value or weight.
22 On this basis, the Shire submits that MRAC has presented no acceptable evidence as to whether the Yalgoo properties are, in fact, leased to Aboriginal people.
23 In particular, the Shire submits that the assertion by Ms Marshall in her first affidavit that she is 'certain that at least one tenant in each [of the Yalgoo properties] is (and, at the time the properties were rated, was) Aboriginal or Torres Strait Islander …' Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [26]. appears to be based on an assumption that MRAC followed its housing eligibility policies when entering into the tenancy agreements. However, there is insufficient evidence before the Tribunal to establish that there was, at all relevant times, a written policy in relation to housing eligibility in place which required that the tenant be an Aboriginal person.
24 The tenancy agreements attached to Ms Marshall's first affidavit show that the relevant tenancies were entered into in 1995, 1996, 1997, 2009, 2010, 2013 and 2016. Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) Annexure MM-4.
25 In her supplementary affidavit, Affidavit of Mary Elizabeth Marshall sworn 1 December 2017 (Exhibit 2) [8]. Ms Marshall states that MRAC 'has had an official housing eligibility policy since its inception', and she attaches to her affidavit copies of housing eligibility polices from 2000 to 2012. In her first affidavit, Ms Marshall refers to, and attaches copies of, MRAC's housing eligibility policies adopted on 15 November 2016 and updated on 29 April 2017. No written policy documents dated prior to 2000 are in evidence before the Tribunal. Ms Marshall gave evidence that: Affidavit of Mary Elizabeth Marshall sworn 1 December 2017 (Exhibit 2) [10].
MRAC no longer has records of its housing eligibility policies from before 2000. However, I am aware that MRAC received funding from the State and Federal Governments and through the Aboriginal and Torres Strait Islander Commission before its abolition in 2004. In my experience, any funding agreements in place would have stipulated that funds were supplied for capital purchases to house Aboriginal people. I infer from that, that MRAC has always had a housing eligibility policy that requires that its tenants are Aboriginal.
26 Ms Marshall does not give any details as to her 'experience' with funding agreements she is referring to, or how or when she acquired it, or the State, Federal or other bodies the experience relates to.
27 The Tribunal is not satisfied on the evidence that Ms Marshall is a person who can give an opinion as to whether the fact that a 'funding agreement' was in place can lead to a logical deduction or conclusion about whether housing eligibility policies were in place or were enforced at the time when tenancy agreements were entered into before the year 2000.
28 The Tribunal considers that, absent any credible foundation for Ms Marshall's belief that there was an official housing eligibility policy in place since the inception of MRAC requiring that its tenants be Aboriginal, and without any such written policy being in evidence before the Tribunal, there is insufficient evidence on which it is possible to conclude that there was an official housing eligibility policy in place prior to 2000.
29 Thus, in relation to three of the tenancies (entered into in 1995, 1996 and 1997), it is not possible to be satisfied that there was an official housing eligibility policy in place at the time the tenancy was entered into.
30 In addition, the Tribunal accepts the Shire's submission that Ms Marshall's evidence, as to her belief that the housing eligibility policies (where they existed) were consistently applied in relation to entry into the tenancies for the Yalgoo properties, is without necessary foundation, except for the one instance where Ms Marshall applied the policy herself when the 2016 tenancy was entered into. Given her relatively recent commencement in her role within MRAC, it is not apparent how Ms Marshall could have reliably come to any such conclusion.
31 It is difficult to understand why MRAC did not adduce direct evidence, from each of the tenants, as to his or her Aboriginality. It is also difficult to understand why, if there is an Aboriginal person who is an Elder in an Aboriginal community and who is able to identify each of the tenants as being an Aboriginal person, direct evidence to that effect from that person was not put before the Tribunal.
32 Nevertheless, Ms Marshall does state in evidence that Mr Colin Hamlett is the MRAC Vice-Chairperson and an Elder of the Wadjarri community and that he has confirmed that all of the tenants of the Yalgoo properties are Aboriginal, as they are related to him, related to his wife or related by marriage. Affidavit of Mary Elizabeth Marshall sworn 1 December 2017 (Exhibit 2) [13].
33 We are satisfied that it is reasonable to infer from that statement that in order for Mr Hamlett to know that each of the tenants is related to him, related to his wife, or related by marriage, he must personally know, or know of, each of those people. As indicated earlier, Ms Marshall gave evidence that Aboriginality is a matter of social recognition as much as it is of descent. Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [22]. This evidence was not questioned or contradicted and we accept it. Indeed, the Tribunal considers that, in Western Australia, judicial notice can be taken of the fact that an Elder of an Aboriginal community is in a position to be able to say that a person is an Aboriginal on the basis of his or her knowledge of the person or their family.
34 In Medical Board of Australia and Woollard [2012] WASAT 209, the Tribunal said the following [85]:
Section 32(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that the Tribunal 'is not bound by the rules of evidence' and is to act 'according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'. However, as was observed in the decision of the Commonwealth Administrative Appeals Tribunal in Re Baini and Commissioner of Taxation [2012] AATA 440; (2012) 57 AAR 452 at [119], '[t]here is, though, a difference between not being bound by the rules of evidence and not having regard to them'. Similarly, as the NSW Administrative Decisions Tribunal said in Cornish Investments Pty Ltd v Chief Commissioner of State Revenue [2012] NSWADT 204 at [31], although it is also not bound by the rules of evidence:
… in considering an application the Tribunal must, however, not ignore the commonly accepted rules of evidence as was suggested by Evatt J when considering a provision similar to s 73(2) in R v The War Pensions Entitlement Appeal Tribunal and another; ex parte Bott (1933) 50 CLR 228 at 256:
- Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and illicit truth. No Tribunal can, without grave danger of injustice, sit then on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such do not bind, every attempt must be made to administer 'substantial justice'.
36 Ms Marshall also gave the following evidence in relation to the tenants of the Yalgoo properties: Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [26].
Eight of the nine MRAC Yalgoo tenants belong to the following cultural groups being Wadjarri; Yamatji Noongar; Wajarri Badimaya; and Badimaya and it is understood that the ninth tenant is Badimaya.
37 Although it is not stated how Ms Marshall knows this information, the level of detail in this evidence as to the particular Aboriginal cultural group to which each of the tenants belongs tends to support Ms Marshall's statement that at least one tenant of each of the Yalgoo properties is (and was at the time the properties were rated) an Aboriginal person. In our view, given Ms Marshall's level of detail as to the particular Aboriginal cultural group to which each tenant belongs, and given that she was not crossexamined, some weight should be given to this evidence.
38 Furthermore, we accept Ms Marshall's evidence that 'Aboriginal housing is a limited resource', as her evidence in this respect was not questioned and is borne out in the reports referred to below. Whether an official housing eligibility policy was in place before 2000 or not, it is unlikely that MRAC, being an Aboriginal Corporation which provides housing to Aboriginal people, with such housing being a limited resource, would have rented, and would continue to rent, any of its Yalgoo properties to anyone who is not an Aboriginal person.
39 On the evidence presented by MRAC, the Tribunal is satisfied on a balance of probabilities and finds that each of the tenants of the Yalgoo properties is, and was at the relevant time for the purpose of rating, an Aboriginal person.
40 Before leaving this topic, it remains for us to address the Shire's submission, based on Mr Hamlett's statement related in Ms Marshall's evidence, that all of the tenants of the Yalgoo properties are related to him, related to his wife or related by marriage, that 'there appears now to be a strong possibility on the evidence that the tenancies [of the Yalgoo properties] were granted on the basis of [each tenant's] familial relationships with the Vice-Chairperson [of MRAC]' and, as such, were not available to and for the benefit of the public at large, or a class or section of the public, so as to constitute a charitable purpose.
41 In Mandurah v Australian Flying Corps, the Court of Appeal (Buss P, Martin CJ [1] and Newnes JA [96] agreeing) held as follows [52] [55] (citations omitted):
A purpose will not be charitable unless the carrying out of the purpose will be of benefit to the public or an appreciable section of the public. … Neither the Statute of Charitable Uses nor the Preamble expressly refers to public benefit, but this element is inherent in the concept of charity.
The word 'public' in this context means 'the community'. …
The requirement that the carrying out of the purpose be of benefit to the public (that is, the community) or an appreciable section of the public involves, in general, a qualitative evaluation of the nature of the purpose in the context of the Preamble and the four principal divisions stated by Lord Macnaghten in [Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531] and the class of persons eligible to benefit (in particular, any limitations on the class). …
In Re Scarisbrick [1951] 1 Ch 622 Jenkins LJ said, in the course of setting out five general propositions on the element of public benefit:
An aggregate of individuals ascertained by reference to some personal tie (eg, of blood or contract), such as the relations of a particular individual, the members of a particular family, the employees of a particular firm, the members of a particular association, does not amount to the public or a section thereof for the purposes of the general rule. …
43 We are satisfied on the evidence presented by MRAC on a balance of probabilities and find that the Yalgoo properties are and were at the relevant time used (exclusively) to provide housing for the benefit of an appreciable section of the population, namely Aboriginal people.
Financial basis on which the Yalgoo properties are rented
44 Ms Marshall gave the following evidence, which was not questioned or contradicted, and which we accept: Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [39] [40].
The current rent for each [of the Yalgoo properties] is as follows:
a) for two bedroom properties: $160 [per week];
b) for three bedroom properties: $200 per week; and
c) for four bedroom properties: $230 per week.
The rent on each of the [p]roperties is calculated on a costrecovery basis.
45 As Ms Marshall explained: Affidavit of Mary Elizabeth Marshall sworn 1 December 2017 (Exhibit 1) [23].
MRAC aims to charge as low rent as it can while covering its costs, but MRAC does not receive any external funding, which means that it is unable to further subsidise the rent.
46 Ms Marshall also gave evidence, which was not questioned or contradicted and which we accept, that MRAC allows 'flexible rent and utilities payment options' and provides tenants with 'a 24 hour on call emergency service and a highly responsive maintenance service'. Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [8].
47 As Ms Marshall explained, although the rent for the Yalgoo properties is calculated on a 'cost-recovery basis', in fact, the rent does not usually fully cover necessary maintenance costs: Affidavit of Mary Elizabeth Marshall sworn 31 October 2017 (Exhibit 1) [41] [42] and [48] [49].
MRAC does not fully recover its costs on the [p]roperties because:
(a) the cost of maintaining the [p]roperties is very high. As at 30 September 2017, MRAC has expended $13,626 on the [p]roperties during the current 2017/18 financial year, has committed to spending a further $12,746 by 31 December 2017 and has programmed costs of $4,500 when sufficient funding becomes available. A further estimated $25,000 in fencing repairs must also be undertaken this financial year;
(b) the majority of the tenants of the [p]roperties create multiple challenges in managing their respective tenancies, including a high incidence of tenant liability damage, excessive water bills and lack of care of the [p]roperties; and
(c) the level of tenant debt is very difficult to manage with five of the seven tenants having arrears ranging from $1,600 to $3,350, totalling $12,005 as at 30 September 2017. Whilst this debt is now all 'controlled debt', additional tenant liability charges generally occur with most properties every time six monthly inspections are conducted. It is highly unlikely these tenants will ever pay their debt off.
There is currently no 'upgrade' provision in [MRAC's] budget, meaning [MRAC] covers costs of maintenance and upgrades to the [p]roperties at a 'loss'.
…
MRAC has an extensive program works commitment that is funded through any savings/surplus. Nonurgent work is programmed, and any additional surplus throughout the year is allocated to these programmed works as funds become available.
MRAC has no properties that are rented at a profit with the aim of funding MRAC's other operations. Notwithstanding that MRAC's intention in relation to the [p]roperties is that they will operate on a cost[]recovery basis, the reality is that MRAC presently runs the Yalgoo [p]roperties at a loss and expects to do so into the future.
48 Ms Marshall annexed a spreadsheet to her second affidavit which she prepared and which breaks down the annual rent and costs for each of the seven Yalgoo properties for the 2016/2017 financial year and states the 'net surplus/loss' position for each property. Affidavit of Mary Elizabeth Marshall sworn 1 December 2017 (Exhibit 2) Annexure MM-14. The Shire submitted that Ms Marshall's analysis in the spreadsheet cannot be relied upon, because 'she has incorrectly used arrears as though … they were an expense to be deducted from revenue'. T:30; 11.12.17. However, this criticism misunderstands the analysis in the spreadsheet. Although the spreadsheet refers to arrears in rent in relation to each property, the 'net surplus/loss' has been calculated only on the basis of the annual rent and costs for each property for that financial year, without regard to the arrears.
49 Based on her analysis in the spreadsheet, Ms Marshall gave the following evidence, which was not questioned or contradicted and which we accept: Affidavit of Mary Elizabeth Marshall sworn 1 December 2017 (Exhibit 2) [19] [21].
[I]t now appears that two of the [p]roperties generated a very small surplus [of $650 and $681] for the 2016/2017 financial year. This is primarily due to the scheduling and when works are invoiced. Property number two had a total of $685 in works in June 2016 and July 2017 and property number seven had a total of $1587 in works invoiced over the same two months. In the context of the overall Yalgoo portfolio loss, this minimal surplus is insignificant and arises from scheduling.
… [N]one of MRAC's properties are rented with the intention of making a profit to fund other activities. …
Some of MRAC's properties do generate an overall surplus in some years (although most of the Yalgoo [p]roperties do not), but this is merely incidental.
50 The Tribunal is satisfied on this evidence and finds that five of the seven Yalgoo properties generated a loss to MRAC in the relevant rating year. Although the other two Yalgoo properties generated a surplus in the relevant rating year, the Tribunal accepts the evidence of Ms Marshall that this was primarily due to the timing of ongoing maintenance for those properties.
51 The Tribunal also accepts Ms Marshall's uncontested evidence and finds that the Yalgoo properties are let on a costrecovery only basis, and not for the purpose of generating a profit or surplus funds, although in fact the rent charged does not usually fully cover necessary maintenance costs.
52 Finally, we note and reject the Shire's suggestion that, because each of the tenants is related to Mr Hamlett or his wife, or by marriage, there may have been a 'disincentive in pursuing arrears against a family member'. There is absolutely no evidence before the Tribunal to support this suggestion.
Evidence and findings of fact as to whether Aboriginal people are in need of housing assistance
53 In July 1999, the Supreme Court of Western Australia (Wheeler J) observed that Aboriginal people 'have continued to be, as a class, "notoriously in need of protection and assistance"' (Ashburton v Bindibindi [20]).
54 MRAC submits, and the Tribunal accepts, that although these words were published some 19 years ago, a number of publicly available reports clearly demonstrate that this unfortunately remains the situation today, including, relevantly, in relation to housing.
55 The Tribunal considers that the following extracts from the reports in evidence are particularly pertinent.
Department of Prime Minister and Cabinet, Closing the Gap: Prime Minister's Report 2017 (2017) (Closing the Gap Report) Page 96; Exhibit 3.8.
Housing is fundamental to the well-being of all Australians it supports employment, education and health and has a significant impact on workforce participation. In 2014-15, Indigenous households were about half as likely as non-Indigenous Australian households to own their home and more than three times as likely to live in overcrowded dwellings.
The condition of housing is also of concern. In 2014-15:
· 18 per cent of Indigenous households were living in houses of an unacceptable standard (more than two major structural problems and less than four working facilities for washing people, clothes/bedding, storing/preparing food, and sewerage). There has been an increase in the proportion of Indigenous households living in houses of an acceptable standard, from 78 per cent in 2012-13 to 82 per cent in 2014-15.
· Around 26 per cent of Indigenous households were living in dwellings with major structural problems (including problems such as sinking/moving foundations, sagging floors, wood rot/termite damage and roof defects). This was a reduction from 2012-13 (34 per cent).
· In very remote areas 37 per cent of Indigenous households were living in dwellings with major structural problems.
Onequarter of homeless Australians are Aboriginal. The 2011 Census found that there were 105 237 homeless people in Australia of which 26 744 were Aboriginal or Torres Strait Islander people. The November 2014 Key indicators report [Productivity Commission, Overcoming Aboriginal and Torres Strait Islander peoples Disadvantage, Key indicators report 2014] pp 4.94 4.95 stated:
Aboriginal and Torres Strait Islander people are overrepresented amongst those who received assistance from specialist homelessness agencies. Although only representing 3 per cent of the Australian population in 2011, Aboriginal and Torres Strait Islander people represented around onefifth (22 per cent) of [specialist homelessness services] SHS clients (AIHW 2013). However, Aboriginal and Torres Strait Islander people and nonIndigenous people sought services for similar reasons. …
7.2 Indigenous life expectancy and death rates
…
Life Expectancy
• Indigenous boys born between 2010 and 2012 can expect to live to 69.1 years and Indigenous girls to 73.7 years compared with 79.7 for nonIndigenous boys and 83.1 for non-Indigenous girls.
• Life expectancy at birth has increased by 1.6 years for Indigenous men and 0.6 years for Indigenous women since 2005-2007 (Figure 7.2). It has also increased by 0.8 years for non-Indigenous men and 0.5 years for non-Indigenous women.
…
Death rates
• Indigenous Australians had higher death rates than non-Indigenous Australians across all age groups during 2007-2011. In the 35-44 age group, Indigenous people died at about 5 times the rate of nonIndigenous people.
• Between 2001 and 2011, there was a 6% fall in the death rate for Indigenous Australians and a narrowing of the gap between Indigenous and non-Indigenous Australians.
Leading causes of death
• Between 2007 and 2011, Indigenous Australians were most likely to die from circulatory conditions (26% of all Indigenous deaths), cancer (19%) and external causes such as suicides, falls, transport accidents and assaults (15%).
• The largest gap in death rates between Indigenous and nonIndigenous Australians was in circulatory disease deaths (22% of the gap) followed by endocrine, metabolic and nutritional disorders (particularly diabetes) (14% of the gap).
• Indigenous Australians were 5 times as likely as nonIndigenous Australians to die from endocrine, nutritional and metabolic conditions (such as diabetes), and 3 times as likely to die of digestive conditions.
Infant and child deaths
• There were 10,396 infant deaths between 2001 and 2012, of which 1,315 (13%) were Indigenous infants. The rate of Indigenous infant deaths fell by 62% between 2001 and 2012 and by 23% for non-Indigenous infants (Figure 7.3).
• Indigenous children aged 04 died at more than twice the rate of nonIndigenous children in 2012 (165 per 100,000 compared with 77 per 100,000 population) (SCRGSP forthcoming). Indigenous child death rates fell by 30% from 2001 to 2012 compared with 22% for nonindigenous children (Figure 7.3).
...
7.5 Social determinants of Indigenous health
Social determinants of health are social and economic factors that can have a positive or negative effect on the health of individuals and communities by affecting the environment and conditions in which they live. They can also affect people's health by influencing their behaviours and decisions (see Chapter 7 'Health behaviours of Indigenous Australians'). For example, people living in houses without safe drinking water may be at risk of diarrhoeal diseases, and those on low incomes may not eat fresh fruit and vegetables regularly if they cannot afford them. The social disadvantages Indigenous people experience in relation to housing, education, income and employment have contributed to the differences in health outcomes between Indigenous and non-Indigenous Australians.
Housing
• The 2011 Census data show that about 36% of Indigenous households were home owners or purchasers and 59% were renters, compared with 68% and 29% of non-Indigenous households respectively.
• About 12% of Indigenous households were considered overcrowded in 2011, compared with 3% of nonIndigenous households. Levels of overcrowding in remote Indigenous households fell from 22% in 2006 to 20% in 2011 (FaHCSIA 2013).
• The rate of homelessness for Indigenous Australians was 14 times as high as the rate for non-Indigenous Australians in 2011 (ABS 2012b).
• Despite making up 3% of the population, Indigenous people represented 22% of people accessing specialist homelessness services in 2012-13.
…
(Emphasis added)
Australian Institute of Health and Welfare (Australian Government), Housing and homelessness services - Access for Aboriginal and Torres Strait Islander people (May 2011) Pages viii, 43 and 44; Exhibit 3.3.
Summary
…
Housing and housing assistance
In 2006, there were 166,700 Indigenous households in Australia, making up 2.3% of Australian households. A total of about 411,300 persons were reported to live in Indigenous households.
The 2006 Census data showed differences between Indigenous and nonIndigenous households in relation to patterns in housing tenure type and overcrowding:
• About a third of Indigenous households were home owners (with or without a mortgage), while almost two-thirds were renting. For nonIndigenous households, over two-thirds owned their own home (with or without a mortgage) and less than a third were renting.
• About 5% of Indigenous households were living in overcrowded conditions compared with 0.5% of non-Indigenous households.
Also, based on 2006 data, it has been estimated that around 11,000 dwellings were required by Indigenous households to address the unmet need for social housing assistance.
Homelessness
In 2006, Indigenous Australians represented around 2.5% of the Australian population but accounted for around 9% of the homeless population (9,526 out of 104,676 homeless people). Indigenous Australians were also overrepresented as clients of specialist homelessness agencies funded through the Supported Accommodation Assistance Program (SAAP). In 2008-09, almost a fifth of specialist homelessness service clients were Indigenous.
…
4.2 Overcrowding
Overcrowding is defined as a situation where the dwelling is too small for the size and composition of the household living in it. Overcrowding places stress on kitchen, bathroom and laundry facilities, as well as on sewerage systems such as septic tanks. This increases the risk of the spread of infectious diseases (Howden-Chapman & Wilson 2000). Overcrowding can also contribute to poor educational outcomes (Biddle 2007) and family violence (SCRGSP 2009a). Reducing overcrowding for Indigenous households continues to be a focus of government policy and is included in both the NAHA and NPARIH as performance measures.
…
4.2.1 Overcrowding and tenure type
The 2006 Census data provides an indication of overcrowding across tenure types. Overall, 5% (7,323 households) of Indigenous households were living in overcrowded conditions (requiring two bedrooms or more) at that time (Table A2.9) compared with 0.5% (32,167) of non-Indigenous households (AIHW 2009p).
(Emphasis added)
Equal Opportunity Commission (Western Australia), Finding a Place Final Report of the Implementation and Monitoring Committee (2011) Pages 8-9; Exhibit 3.5.
In the period 1998 - 2002 many claims of discrimination by Aboriginal tenants and applicants against the public housing authority were filed with the Equal Opportunity Commission (EOC). As a result Acting Commissioner, Moira Rayner, set up an Inquiry examining the policies and procedures of the Department of Housing and Works (hereafter referred to as the Department) and their impact on Aboriginal people in the area of public housing and related services, and whether there was indirect discrimination.
…
The Inquiry found there were many areas where the policy and practice of the Department tended to provide greater difficulties for Aboriginal people in either gaining or maintaining tenancies compared to other tenants. These difficulties in policy and practice could be more accurately categorised as indirect discrimination where the standard conditions applied to applications and tenancies were unable to be complied with by a large proportion of Aboriginal People or households. For example households characterised by overcrowding due to responsibility to large extended families would be affected by the policies of income to rent, tenant liability for damage and antisocial behaviour which often resulted in breach notices and sometimes escalated to eviction. For some Aboriginal people regular periods of upheaval due to premature death of relatives, chronic disease and disability, and neighbourhood disputes about cultural issues and obligations unknown to most Australians also seriously impacted on their tenancies.
(Emphasis added)
Department of Health (Australian Government), Aboriginal and Torres Strait Islander Health Performance Framework (2017) (Health Performance Framework) Pages 96-98; Exhibit 3.7.
Housing
Why is it important?
Housing circumstances including overcrowding, tenure type and homelessness both directly and indirectly influence health outcomes (Andersen et al, 2016). The effects of overcrowding occur in combination with other environmental health factors such as unsafe, unclean and poor quality housing infrastructure (see measure 2.02); exposure to toxins and allergens such as smoking indoors (see measure 2.03); as well as increased risk of injury within the home (Bailie, RS & Wayte, 2006; Brackertz, 2016; Nganampa Health Council et a1,1987).
There are complex relationships between housing circumstances, health and socio-economic factors such as education, income and employment (Thomson, H et al, 2013). Overcrowding, insecure housing tenure, and homelessness adversely impact on school attendance and attainment (Brackertz, 2016; Biddle, 2014a); and housing tenure and affordability have been found to have negative impacts on childrens' physical health, learning outcomes and social and emotional wellbeing (Dockery et al, 2013). Biddle (2011) found structural problems and missing facilities (measure 2.02) had a greater association with wellbeing outcomes than overcrowding and tenure type.
Homelessness is linked with experiences of domestic violence, alcohol and drug problems, financial hardship and unmet need for public housing (Graham, D et al, 2014; Memmott et al, 2012).
Findings
The 2014-15 Social Survey collected data on a variety of housing characteristics, including overcrowding. Households requiring at least one additional bedroom are defined as overcrowded according to the Canadian National Occupancy Standard. In 2014-15, 21% of all Aboriginal and Torres Strait Islander persons were living in overcrowded households compared with 6% of non-Indigenous Australians. A large number of Indigenous Australians in both non-remote areas (82,100) and remote areas (59,400) experienced overcrowding, however it was more common in remote areas; 41% of Indigenous Australians in remote areas lived in overcrowded households, compared with 15% in major cities. In 2014-15, overcrowding was higher in the NT (53%) than any other state or territory (at least double the rate of overcrowding in any other jurisdiction). The next highest proportion was WA (25%). …
In 2014-15, 29% of Indigenous adults lived in homes that were owned or being purchased by a household member (referred to here as home owners). This comprised 10% who owned their homes outright and 19% with a mortgage. A further 35% lived in a property rented through social housing (provided by state/territory governments and community sectors to assist people who are unable to access private rentals); and 32% lived in private rentals. In contrast, 69% of non-Indigenous adults were home owners. …
In 2014-15, Indigenous Australians were more than twice as likely as nonIndigenous Australians to have experienced homelessness (29% compared with 13%). …
In 2011, Indigenous Australians accounted for 28% of the homeless population (based on the ABS definition of homelessness). …
Access to functional housing with utilities
Why is it important?
Housing is an important mediating factor for health and wellbeing. Functional housing encompasses basic services/facilities, infrastructure and habitability. These factors combined enable households to carry out healthy living practices including waste removal; maintaining cleanliness through washing people, clothing and bedding; managing environmental risk factors such as electrical safety and temperature in the living environment; controlling air pollution for allergens; and preparing food safely (Bailie, RS & Wayte, 2006; Nganampa Health Council et al, 1987; Department of Family and Community Services, 2003).
Children who live in a dwelling that is badly deteriorated have been found to have poorer physical health outcomes and social and emotional wellbeing compared with those growing up in a dwelling in excellent condition (Dockery et al, 2013). Social and emotional wellbeing is more strongly associated with external building condition than physical health, however this is likely to be due to other factors that are linked to building condition.
Comparisons between Indigenous and nonIndigenous children in the Longitudinal Study of Australian Children (LSAC) show improvements in housing can be expected to translate into gains for Indigenous children's health, social, and learning outcomes (Dockery et al, 2013). As expected, housing variables are closely associated with socio-economic status, including: overcrowding, renting rather than owning, and being in financial stress (see measures 2.01 and 2.08).
Infectious diseases are more common in households with poor housing conditions. For example, trachoma and acute rheumatic fever are present almost exclusively in remote areas (see measures 1.06 and 1.16). Domestic infrastructure, along with overcrowding and exposure to tobacco smoke increases the risk of otitis media in children (Jervis-Bardy et al, 2014) (see measures 1.15, 2.01 and 2.03).
Findings
The 2014-15 Social Survey collected data on household facilities and structural problems. In 2014-15, 18% of Indigenous households were living in houses of an unacceptable standard (more than two major structural problems and less than 4 working facilities for washing people, clothes/bedding, storing/preparing food, and sewerage). There has been an increase in the proportion of Indigenous households living in houses of an acceptable standard, from 78% in 2012-13, to 82% in 2014-15. The highest proportion of people living in houses of an acceptable standard was in Qld (86%) and the lowest was in the NT (69%).
81 The QuickStats document states that, whereas the 'median rent' per week for all dwellings in the Shire's district was $50, the 'median weekly rent' for Aboriginal and/or Torres Strait Islander households was $174. However, the Tribunal is not satisfied that this evidence is capable of establishing what is market rent, particularly in light of the very small numbers of dwellings on which the figures are based and the use of a median figure only.
82 Furthermore, and in any case, the Tribunal does not consider that it is necessary for MRAC to prove that each of the Yalgoo properties is rented at below market rent. In circumstances where (as the evidence shows) the need of Aboriginal people for assistance in relation to housing is related not just to the cost of housing, but also to the ability to obtain and retain appropriate housing, it is sufficient to show that land is used exclusively to provide housing to Aboriginal people, by a notforprofit organisation on a costrecovery only basis.
Were each of the Yalgoo properties used exclusively for a charitable purpose in the 2016 2017 rating year?
83 For the reasons given earlier, the Tribunal is satisfied, on the evidence before it, that the following facts have been proved by MRAC:
1) The tenants of each of the Yalgoo properties are Aboriginal people.
2) All of the Yalgoo properties are leased on a cost-recovery only basis, although two of the properties made a small surplus in the rating year in question (primarily due to scheduling and when works are invoiced).
3) Aboriginal and Torres Strait Islander people living in Western Australia, and in particular in rural Western Australia, are, as a class, significantly disadvantaged in the area of housing and in special need of assistance in relation to obtaining and retaining safe, functional and appropriate housing, when compared with nonIndigenous Australians.
4) MRAC is a not-for-profit organisation providing housing to Aboriginal and Torres Strait Islander people and does not rent any of the Yalgoo properties with the intention of generating a profit.
84 In our view, the use of each of the Yalgoo properties to provide housing to Aboriginal people, by a notforprofit organisation and on a costrecovery only basis, is a 'charitable purpose' at law, which is either analogous to the first category or division of charitable uses recognised in the authorities, namely 'the relief of poverty', or, in any case, falls within the fourth category or division of charitable uses, namely 'other purposes beneficial to the community'. Aboriginal and Torres Strait Islander people, as a class or segment of the Australian population, are and were at the relevant date, in significant need of assistance in relation to housing. They are, as a class or segment of the Australian population, 'poor' in terms of access to and retention of safe, functional and appropriate housing.
85 The exclusive use of the Yalgoo properties is and was at the relevant time for the relief of that significant need and therefore falls within the 'spirit and intendment' of the Preamble to the Statute of Elizabeth and thus within the scope of the exemption from rating in s 6.26(2)(g) of the LG Act. The Yalgoo properties were therefore not rateable land at the relevant date.
86 Consequently, the Shire's decision to reject MRAC's objection to the rate record for the year ending 30 June 2017 should be set aside and a decision should be substituted that the objection is allowed on the basis that there is an error in the rate record as all of the land the subject of the objection is not rateable land, because it is used exclusively for a charitable purpose.
Costs application
87 It remains only to address the Shire's application for costs of the proceeding. The Shire seeks an order for costs against MRAC on the basis that: T:33; 11.12.17.
… the conduct of MRAC has been egregious in failing to provide evidence to substantiate its application. …
88 Section 87(1) of the SAT Act provides, in essence, that subject to the enabling Act, the starting position is that each party bears its own costs in proceedings in the Tribunal. However, s 87(2) of the SAT Act confers a broad and unconfined discretion on the Tribunal to order one party to pay the costs of another party.
89 The Tribunal's established practice in relation to the exercise of its discretion as to costs in administrative review proceedings (such as this case) is that, normally, each party is to pay its own costs. As Justice Barker, the inaugural President of the Tribunal, said in Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206 [36]:
… [T]he State Administrative Tribunal has been established by the Parliament of the State with its review jurisdiction as part of the system of public administration of the State to ensure that the citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. The starting out position is that, absent other relevant factors, an applicant should be able to obtain review without being obliged to meet the decision-maker's costs if they do not succeed; and similarly, the decision-maker is not ordinarily entitled to recover costs from the applicant in the event the review application is unsuccessful.
90 Section 87(4) of the SAT Act also relevantly provides:
Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to
(a) whether the party (in bringing or conducting the proceeding before the decisionmaker in which the decision under review was made) genuinely attempted to enable and assist the decisionmaker to make a decision on its merits[.]
…
91 Costs orders are only generally made in review proceedings where a party has acted unreasonably, including when a party has failed to meet the expectation expressed in s 87(4) of the SAT Act.
92 As indicated earlier, MRAC relied on two affidavits by Ms Marshall. While the second of those affidavits was filed relatively late (on 4 December 2017), a week before the final hearing, the Shire did not object to MRAC's application for leave to rely on that evidence or assert any prejudice arising from it. As indicated earlier, the Shire did not seek to crossexamine Ms Marshall on either of her affidavits.
93 We are not satisfied that MRAC acted unreasonably in its conduct of the proceeding. Ultimately, it presented sufficient evidence for the application for review to be allowed. Although some of that evidence was only filed a week before the final hearing, it was not objected to and, indeed, was not contested by crossexamination.
94 Furthermore, MRAC submitted a significant amount of relevant information to the Shire in support of its objection. Respondent's Section 24 bundle of documents (Exhibit 5) tab 3 pages 52 210. We therefore find that MRAC genuinely attempted to enable and assist the Shire to make its decision on the merits of the objection.
95 Consequently, the Shire's application for costs should be dismissed.
Orders
96 For the reasons stated above, the Tribunal makes the following orders:
1. The application for review is allowed.
2. The respondent's decision to disallow the applicant's objection to the rate record for land located at:
(a) No 52 Campbell Street, Yalgoo;
(b) No 25 Henty Street, Yalgoo;
(c) No 91 Henty Street, Yalgoo;
(d) No 92 Henty Street, Yalgoo;
(e) No 83 Milligan Street, Yalgoo;
(f) No 87 Milligan Street, Yalgoo; and
(g) No 29 Selwyn Street, Yalgoo,
for the year ending 30 June 2017, is set aside and a decision is substituted that the objection is allowed on the basis that there is an error in the rate record as all of that land is not rateable land, because it is used exclusively for a charitable purpose.
3. The respondent's application for costs is dismissed.
I certify that this and the preceding [96] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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