Ngurratjuta Pmara-Ntjarra Aboriginal Corp v Comm of Taxes

[2002] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D5 of 2001

B e t w e e n -

NGURRATJUTA PMARA/NTJARRA ABORIGINAL CORPORATION

Applicant

and

COMMISSIONER OF TAXES

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 MAY 2002, AT 2.09 PM

Copyright in the High Court of Australia

MR C.R. McDONALD, QC:   May it please the Court, I appear with MR C.H. GOODALL, for the applicant. (instructed by Collier & Deane)

MR J.W. DURACK, SC:   May it please the Court, I appear with MR G.J. STIRK, for the respondent. (instructed by Povey Stirk)

KIRBY J:   Yes, Mr McDonald.

MR McDONALD:   Your Honours, there are two significant questions of national public importance which arise in this application.  The first is that the proposed appeal raises the question of liability of public benevolent institutions and other religious and charitable bodies and certain hospitals and schools across Australia to pay payroll tax in respect of their employees under what is, essentially, a uniform State payroll‑tax legislation system.

The second point of the proposed appeal would seek to address what we would submit was a serious error in the fundamental approach by the Court of Appeal in the task of statutory construction.  It is our submission that the Court of Appeal failed to follow established principle and this fundamental failure takes this case out of the ordinary or general run of cases.

It is our submission that the Court of Appeal failed to construe the relevant section of the Northern Territory payroll‑tax amending legislation in its proper legal and historical context and, in particular, without reference to extrinsic material which was put before it to assist the court in the task of statutory construction.  This error can best be seen in the judgment of Justice Thomas at application book page 34 in paragraphs 24, 25 and application book page 35 in paragraph 27.  It is apparent from the reasons of the court that Chief Justice Martin and Justice Angel agreed with her Honour’s reasoning.  May I take the Court to paragraph 24, where her Honour says this:

I do not agree with the argument advanced on behalf of the appellant that it is either necessary or appropriate ‑ ‑ ‑

CALLINAN J:   Well, why do you not identify the error in the construction first before you take – tell us what the section means and how was it that you say the court got it wrong, before you refer us to the extrinsic material or the non-reference to us.  Can you take us to the section please.

MR McDONALD:   Yes, your Honour. That section appears in the booklet of the applicant’s extracts of payroll‑tax legislation and the pre‑existing section, which granted the exemption, should appear at page 1 of the applicant’s extracts. Section 6 of the Pay-roll Tax Act provided for an exemption and section 9, which appears on page 1, provides that:

Section 6 does not apply to wages paid or payable –

(a)  by a religious or public benevolent institution, or by a public hospital –

and then (b) and (c) sets out further categories of exemption.

By Act No 14 of 1981, which appears on page 2, that section was amended to include section 4 to amend section 9 as follows, that:

Section 9 of the Principal Act is amended by omitting paragraphs (a) to (c) inclusive and substituting the following paragraphs ‑ ‑ ‑

CALLINAN J:   We are only concerned with (a), are we not?  Is that right?

MR McDONALD:   Yes, correct, your Honour.

CALLINAN J:   All right.  Now what was the error in the construction of (a), that is what we should be looking at?

MR McDONALD:   Your Honour, what we say is that there were two constructions before the trial judge as to the words appearing in the latter half of paragraph (a):

that a person is exclusively engaged in the religious work, work of a public benevolent nature or work of the hospital of a kind ordinarily performed in connection with the conduct of public hospitals, as the case may be ‑

It was the appellant’s contention that in respect of those persons employed by the appellant and the applicant in this case, that if they were working and carrying out the work within the objects of the public benevolent institution and were not working for any extraneous body or being ghosted out to another body as part of a tax scheme, then they were persons exclusively engaged in the work of the public ‑ ‑ ‑

CALLINAN J:   But it does not say that.  The section does not say persons working for an institution, the objects of which are benevolent or charitable or, as the case may be.  It says that “the person is exclusively engaged in the religious work, work of a public benevolent nature” or so on.  It simply does not say what you are submitting to us it might say.  The words it seems to me to be absolutely clear, that there is no requirement, no need at all, to look outside the four corners of the statute.

MR McDONALD:   Your Honour, that was the approach taken by the Court of Appeal.  It was the appellant’s and the applicant’s now, contention that to simply look at the statute without the benefit of extrinsic material ‑ ‑ ‑

CALLINAN J:   But courts do not construe speeches in Parliament.  Courts can look at them but, in general, they do not need to look at them and do not look at them if there is no ambiguity.  Now, at the moment, you have not demonstrated to me, and I invite you to do so if you can, that there is an ambiguity in the section.

MR McDONALD:   Your Honour, with respect, there were two contentions before the court ‑ ‑ ‑

CALLINAN J:   It does not matter whether there were contentions; just show me where the ambiguity is.  I am giving you an opportunity.  If you do not want to show me where the ambiguity is, do not, and I am inviting you to do so.

MR McDONALD:   Your Honour, what we say is that in terms of the cases such as ‑ ‑ ‑

CALLINAN J:   No, we do not look at cases until we need to.  We are not going to look at cases on other statutes unless and until there is some occasion to do so.  Do you not want to show me where the ambiguity is?  I am inviting you to do so.

MR McDONALD:   Your Honour, I thank you for that opportunity, but may I take your Honour to what the High Court has said in three cases ‑ ‑ ‑

CALLINAN J:   No, please, do not do that.  Show me what the ambiguity is in the section.  If you do not want to do it, I will not ask you again; you can go on and talk about anything you like.

MR McDONALD:   Thank you, your Honour.  Your Honour, the point is this, the two contentions is whether that “person is exclusively engaged in the . . .  work of a public benevolent nature”, those words, did it mean the individual work of that individual “exclusively engaged” and did it have to be of a “public benevolent nature” or ‑ ‑ ‑

KIRBY J:   The problem for you is the adverb “exclusively”, is it not, really?

MR McDONALD:   Yes, your Honour.

KIRBY J:   I mean, that was not there before, I think.

MR McDONALD:   No, it was not, your Honour.

KIRBY J:   Now it has been added and it does therefore call the attention of the mind to activities which are exclusive and those which are not and that is the problem; once you have that adverb in the section, a classification is required, and that is what you are objecting to.  You say the classification is done by the nature of the enterprise, but the problem is the legislature has slipped in this word “exclusively”.  It just cannot be expunged from the statute.

MR McDONALD:   No, your Honour, but what we say is, without expunging that word, if the employee is carrying out the work of the public benevolent body, which is within the objects of that particular body, and that work must be characterised as work of a “public benevolent nature” ‑ ‑ ‑

KIRBY J:   No, that cannot be so on the face of the statute.  That is the problem, you see; no second reading speech, no Law Reform Commission Report.  I am probably the most willing to look at the other material of any of the Justices of the Court, but they cannot distort and mangle the words of the statute and the words of the statute are “exclusively” and that conjures up the need to classify and you only do that by reference to the activity, not the nature of the enterprise, because it postulates an enterprise, but says, what is exclusively beneficial, so it is just not possible to exclude it from the Act by the use of second reading speeches, I am afraid.

CALLINAN J:   It is the work that must be of a “public benevolent nature”.  The institution would not be registered, according to the laws where it carries on its operations, as a benevolent institution, unless its objects conform to the requirements of such an institution, but you have to go beyond that.  You have to go to the work; the nature of the actual work that is being done.

MR McDONALD:   Your Honour, what we say is that the work here was work for the public benevolent body, not for any other body extraneous to it, and in the context of the type of public benevolent institution that the applicant was, the work of management, work of accountancy, was within the public benevolent range of activities accepted that gave that public benevolent institution its status as a public benevolent body.  Your Honours, what we say is this, that if those persons are exclusively engaged in that work and are not working elsewhere in a commercial enterprise or being ghosted, then those persons qualify and the exemption should hold.  When one looks, your Honours, at the second reading speech ‑ ‑ ‑

KIRBY J:   As I understand the scheme of the Pay-Roll Tax Act, it is specific to the particular person.  You do not, as it were, just classify all of the employees of the enterprise.  You have to look at each individual employee, is that not correct?

MR McDONALD:   Yes, your Honour, “the person is exclusively engaged in the work” of the ‑ ‑ ‑

KIRBY J:   That is right and therefore, as Justice Callinan said, the scheme of it and of the section on its fact is, you look at the person, you find what that person’s work is, and then now you have to ask, is that particular person “exclusively engaged in the religious work” and therefore you are not addressing the nature of the institution.  That is a given, that is in the umbrella by a religious or public beneficial institution.  So that is a given, that is a posited fact, but, within that institution, you then have to look at the work of the particular person and then you have to ask, is that particular person “exclusively engaged”.  So you just cannot get away from the obligation of classification that is laid down by the Act, and no second reading speech or extrinsic material can change that, unfortunately, for you.

MR McDONALD:   Well, your Honour, what we say in relation to that is that if persons are working in a public benevolent body, such as the applicant, which is a body that receives royalties and invests them for 70‑odd Aboriginal communities west of Alice Springs, the nature of that activity, which includes investing, giving accountancy advice to communities that ‑ ‑ ‑

KIRBY J:   Of course it does, and I can understand the point of principle that you want to argue.  You cannot have people saying their prayers without accountants; you have to add the lot.  But the problem is that the statute does not express it that way and what you are saying to us should be rather said to governments.  We cannot undo the terms of the statute as enacted. 

Anyway, I think we understand your submission.  Is there anything additional?  You are getting to the point that you are just asserting what you say is the construction and we are telling you it is really not arguable.  I do understand the importance of it to your client and I understand the argument of merits that you want to put, but it is just not really feasible on the face of the wording of the legislation.

MR McDONALD:   May it please the Court.

KIRBY J:   We do not need your assistance, Mr Durack.

We are not convinced that the construction given by the Court of Appeal to section 9 of the Pay-roll Tax Act of the Northern Territory of Australia was incorrect.  Indeed, having regard to the appearance in the amending Act of the word “exclusively” referring to the “work of the person concerned”, we are of the view that the construction adopted by the Court of Appeal was the correct or preferable one. 

Upon that basis, the issue of the approach of that Court to the task of construction does not arise in this case.  No extrinsic material could alter the meaning of the statute derived from its plain language:  see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 and Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109 at 145.

The application for special leave is refused.  The order of the Court is application refused.

You do not seek costs?

MR DURACK:   Your Honour, we do not seek costs.

KIRBY J:   Application refused.

AT 2.26 PM THE MATTER WAS CONCLUDED