Royal Australasian Ornithologists Union v Chief Commissioner of State Revenue

[2002] NSWADT 263

CITATION:	Royal Australasian Ornithologists Union -v- Chief Commissioner of State Revenue [2002] NSWADT 263
DIVISION:	Revenue Division
PARTIES:	APPLICANT Royal Australasian Ornithologists Union RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	026004
HEARING DATES:	11/06/2002
SUBMISSIONS CLOSED:	07/12/2002
DATE OF DECISION:	12/13/2002
BEFORE:	Verick A - Judicial Member
APPLICATION:	Pay-roll tax - charitable society or institution
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Pay-roll Tax Act 1971 Taxation Administration Act 1996 Statute of Elizabeth 43, Ch4 (1601)
CASES CITED:	Incorporated Council of Law reporting (QLD) v FC of T (1971) 125 CLR 659 AG New South Wales v Sawtell (1978) 2 NSWWLR 200 Mayor of Manchester v MacAdam (1896) 3 TC 492 Australian College of Surgeons v The Federal Commissioner of Taxation [1943] 68 CLR 436 Attorney General and Sawtell (1978) 2 NSWLR 200 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Ross v Costigan (1982) FLR 184; 41 ALR 319 Chesterman v FC of T (1923) 37 CLR 317 Special Purposes of Income Tax v Pemsel (Pemsel's Case) [1891] A.C. 531 Incorporated Council of Law Reporting v FC of T (1971) 125 CLR 659 Stratton v Simpson (1970) 125 CLR 138 Royal Australasian College of Surgeons v FC of T(1943) 68 CLR 436 Thompson v. FC of T (1959) 102 CLR 315 Barclay v. Treasurer of Queensland (1996) 2 QdR 112 Property Security Industry Training Advisory Board v FC of T 1999 ATC 2076
REPRESENTATION:	APPLICANT R Hamilton, barrister RESPONDENT P Gormly, barrister
ORDERS:	1. That the Chief Commissioner erred in considering his view in relation to paragraph (j) of ss10 as a reviewable decision; 2. That the decision of the Chief Commissioner in relation to paragraph (k) of ss10 the subject of this review be affirmed.

1 This is an application to review an objection decision of 13 December 2001 under the provisions found in s 96 of the Taxation Administration Act 1996 (the TA Act). The Chief Commissioner of State Revenue (the Chief Commissioner) in disallowing the applicant's objection determined that the applicant was not exempt from pay-roll tax pursuant to ss 10(1)(j) and 10(1)(k) of the Pay-roll Tax Act 1971 No 22 (the PRT Act).

2 The relevant provisions of the PRT Act are as follows:

"Section 10(1) Subject to sub-sections (1A) and (2), the wages liable to payroll tax under this Act do not include wages paid or payable: .....
(j) by a non-profit organization (other than a school or college, statutory body or an instrumentality of the State) having as one of its objects a charitable, benevolent, philanthropic, or patriotic purpose,....
(k) by a society or an institution (other than a school or college, statutory body or an instrumentality of the State) which:
is, in the opinion of the Chief Commissioner, a charitable society or institution, and is for the time being approved by the Chief Commissioner for the purposes of this paragraph........
(2) Paragraphs (j), (j1) and (k) of subsection (1) only operate so as to exclude from wages liable to pay-roll tax under this Act wages which are paid or payable to employees in respect of time when they are engaged in charitable, benevolent, philanthropic or patriotic work of the non-profit organisation or the charitable work of the organisation society or institution."

3 A preliminary issue arises as to the jurisdiction of the Tribunal to review the objection decision made by the Chief Commissioner. Section 96 of the TA Act allows a taxpayer who is dissatisfied with the Chief Commissioner's determination of the taxpayer's objection, to have the objection decision reviewed by the Tribunal. Under s 86 of the TA Act, the objection decision must be in respect of an assessment served on the taxpayer or any other decision of the Chief Commissioner made under a taxation law. "Taxation law" includes the PRT Act. The jurisdiction question concerns the ability of the Chief Commissioner to make a decision under ss 10(1)(j) and (k).

4 The applicant did not produce any oral or affidavit evidence. The applicant, however, produced two bundles of documents. The first was described as "Tribunal Documents Relating to Decision" which contained correspondence between the applicant's solicitors and the Chief Commissioner's office relating to this matter, copies of letters from the ACT Revenue Office, the Western Australian State Revenue Office and the from the Treasurer of Queensland granting the applicant payroll exempt status in those jurisdictions, Memorandum and Articles of Association of the applicant, Annual reports for the 1998 and 1999 years, a copy of certificate of exemption from stamp duties in Victoria, a copy of a letter from the Australian Taxation Office exempting the applicant from income tax, a copy of a letter from the Victorian State Revenue Office confirming that the applicant was exempt in Victoria for any land tax liability and a copy of a brochure produced by the applicant inviting members of the public to membership of the applicant.

5 The second bundle of documents, "Supplementary Tender Bundle", contained various publications produced by the applicants and described by the applicant as follows:

"General

1.'Join us for the birds' brochure discussing Birds Australia membership and donations, and listing some current projects.
2. 2000 Annual Report.
3. 2001 Annual Report.
4. 'Wingspan' magazine, Vol.12, No. 1 (March 2002).
5. Best of Birding Catalogue (Winter 2002).
6. 'Emu' magazine, Vol.101, No 4, 2001.
7. CSIRO Publishing brochure advertising Emu magazine.
8. 'Birds of the Capertee Valley'.
9. 'Bird Routes of the Barraba District'.
10. Brochure from the Eyre Bird Observatory.
11. Brochure from the Broome Bird Observatory.
12. 'Eclectus': Newsletter of the Birds Australia Parrot Association, Issue Number 11:December 2001.
13. Brochure for the Australian Raptor Association.
14. Brochure for the Australian Wader Studies Group.
15. ‘The Tattler' Newsletter for the East Asian - Australasian Flyway, No 31, April 2002 (Produced by the Australian Wader Studies Group).
16. Newsletter of the Northern NSW Regional Group (February 2002).
17. 'Birds Notes': Newsletter of the Birds Australia Southern NSW and ACT Group, No. 42 March 2002.
18. 'Vic Babbler': Newsletter of Bird's Australia's Victorian Group, No. 62, March 2002.
19. Gluepot Reserve brochure.
20. Gluepot Reserve newsletter, Vol. 3, Issue 1 (February 2002).
21. Birds Australia Report Series 10, Gluepot Reserve (September 2000).
22. Brochure advertising program to 'Adopt an Orange-Bellied Parrot nest site'.
23. Brochure on 'Birds in Backyards' program.
24. Brochure on 'Barren Grounds' program.
25. Volume 3 of a six-volume 'Handbook of Australian, New Zealand & Antarctic Birds'('HANZAB')" (produced for perusal by the Tribunal)

6 In written submissions the applicant outlines the factual background supporting its claim exemption from Pay-roll Tax as follows:

5. Birds Australia is a company limited by guarantee incorporated on s 29 June 1917 to succeed an unincorporated association. Its Memorandum of Association (T-Doc 10) provides in relevant part:
"3 The objects for which the Association is established are:
(a) To promote the study and knowledge of ornithology and its advancement and popularization and to take all and whatsoever means as may be considered most effective to preserve and protect the avifauna indigenous to or occurring in the Australian region or elsewhere and particularly in Australia, New Guinea and New Zealand and the islands and waters adjacent or contiguous thereto….
(c) To establish and maintain such libraries, museums, laboratories, and other scientific aids accessories and conveniences….
(d) To furnish and equip all and every such premises, libraries, museums, laboratories, accessories and conveniences….
(f) To print, publish and distribute or cause to be printed or published and distributed any magazines, pamphlets, periodicals, books or leaflets which the Union may think desirable for the promotion and achievement of its objects and in particular the publication of the quarterly magazine known as The Emu now being published and circulated by the said unincorporated Union….
(o) To offer or give or contribute towards any prize medal or award for any original research, literary contribution, article, essay or effort.
(p) To apply the profits (if any) or other income of the Union for the promoting of the above objects without payment of any dividend to the members of the Union."
6.The memorandum of Association goes on to provide:
"5. The income and property of the Union whencesoever derived shall be applied solely towards the promotion of the objects of the Union as set forth in this Memorandum of Association and no portion thereof shall be paid or transferred directly or indirectly by way of dividend or bonus or otherwise howsoever by way of profit to the persons who at any time are or have been members of the Union or to any of them or to any person claiming through them. Provided that nothing herein shall prevent the payment in good faith of remuneration to any officers or servants of the Union or to any member of the Union or other person in return for any services actually rendered to the Union…..
9. If upon the winding up or dissolution of the Union there remains after the satisfaction of all its debts and liabilities any property whatsoever the same shall not be paid or be distributed among the members of the Union but shall be given or transferred to some other institution or institutions having objects similar to the objects of the Union to be determined by the members of the Union at or before the time of dissolution or in default thereof by such judge of the Supreme Court of Victoria or the High Court of Australia as may have or acquire jurisdiction in the matter."

7 Birds Australia has 7,000 members throughout Australia and 10,000 persons who volunteer their services to Birds Australia (T-doc 5 p.3). Membership is open to all members of the public. The current fee for individual membership is $68.

8 The activities of Birds Australia are set out in its Annual Reports and are concentrated, in accordance with its objects, on education and research in relation to Australasian birds, and the conservation and management of Australian bird life.

9 The principal activities of Birds Australia drawn from its 2000 Annual Report include:

Publications
Atlas of Australian Birds (Second Edition in preparation. This a major research program design to compare impact on Australian birdlife of environmental changes through rigorous survey methods) (pp 7 and 8);
Handbook of Australian, New Zealand and Antarctic Birds (HANZAB) (when complete will consist of seven volumes summarizing all that is known about 950 species in Australia, New Zealand and Antartica. 5 volumes complete to date (pp 14-15);
Centenary History of Australian Ornithology (pp 12 - 13)
Emu - quarterly scientific journal (p 47);
Wingspan - quarterly members magazine (pp 47 - 48);
Numerous brochures (T -doc 6 p4).

Library
Maintenance of the HL White Library, the largest and most complete library of books and other bird related materials in Australia used for scientific research and reference (pp 41 and 42).

Scholarships and Awards
Stuart Lesley Bird Research Award - scholarship to support post graduate field work and travel to scientific conferences (Annual Report 2000 pp 20-21).

Bird Observatories and Reserves
Birds Australia operates four bird observatories and two reserves including the Barren Grounds Bird Observatory near Jamberoo in New South Wales. Educational courses are conducted at the observatories and elsewhere (pp 36 - 40).

Conservation Projects
These are very numerous and include -
Action Plan for Australian Birds;
Birds in Backyard;
Birds of Prey Watch;
Birds on Farms;
Glossy Black Cockatoos in New South Wales;
Homebush Bay bird monitoring;
Kooragang (Ash Island) wetland rehabilitation;
Red-tailed Black Cockatoo (South East Australia);
Regent Honey-eaters (Capertee Valley, New South Wales);
Regent Honey-eaters (northern New South Wales);
Rufos Scrub Birds monitoring (north east New South Wales);
Sydney Airport bird hazard management;
Threatened bird network;
Woodland birds in New South Wales;
Woodlands birds of the Liverpool plains;
Numerous other projects in other parts of Australia (pp 7-25).

Lectures
Lectures are provided free of charge by volunteers at schools and at public halls (T-doc 6 p4).

10 The applicant relies on both s.10(1)(j) and s 10(1)(k) of the PRT Act. In relation to s 10(1)(j), the applicant claims that "it meets the requirements of s 10(1)(j) of the Pay-roll Tax Act being a non-profit organization having as one of its objects a charitable purpose". As regards s10(1)(k), the applicant submits that the Chief Commissioner "has wrongly exercised the discretion granted to him by s 10(1)(k) by making an error of law and that he should have been of the opinion that the Applicant is a charitable society or institution and accordingly should have been approved by the Chief Commissioner for purposes of paragraph 10(1)(k)".

11 In clauses 12 to 21A the applicant sets out the analysis as to why it should qualify under both exemptions as follows:

"12. The determination of whether an organization or institution is charitable is a question of law. Incorporated Council of Law reporting (QLD) v FC of T (1971) 125 CLR 659 - hereafter ICLR v FCT.
13. The determination is made by reference to the dominant objects of the organization or institution as derived from its constitution, and by a consideration of its activities.
14. The meaning of charitable is to be determined by reference to the spirit and intendment of the preamble to the Statute of Elizabeth 43, Ch4 (1601) as explained in Pemsel's case (1891) AC 531. The House of Lords stated that charity was to be understood in its legal sense, and fell under 4 heads:
1) the relief of poverty;
2) the advancement of education;
3) the advancement of religion; and
4) other purposes beneficial to the community.
15. The requirement of benefit to the community or a significant section of the community is implied into the first three heads. Also implicit in the concept is the notion of altruism, which is a consequence of the community benefit requirement.
16. It is submitted that Birds Australia qualifies as charitable under heads 2) and 4), in that its dominant objects and activities are for the advancement of education and conservation of an important part of the natural environment.
17. The advancement of education is primarily in the sense of scientific research and publication, and maintenance of reference libraries. However there is also the provision of educational activities and resources through courses conducted at Bird Observatories and Reserves as well as through school and public lecture programs.
18. The promotion of the study and knowledge of ornithology is its first dominant object and is, it is submitted, for the advancement of education and is beneficial to the community generally, but particularly to the scientific community.
In the alternative, if the scientific research of Birds Australia is not the advancement of education, it is the benefit of the community generally and would fall under the 4th head of charity.
19. The other dominant object of the Applicant is 'to preserve and protect the avifauna of Australasia'. In other words its other principal object is the conservation of nature and the environment which, it is submitted, should be regarded as a purpose beneficial to the general community (see AG NewSouth Wales v Sawtell (1978) 2 NSWWLR 200).
20. The Applicant is a non-profit entity since it is prohibited from paying dividends or other distributions to its members and must apply surplus to a similar organization on winding up. It is not apprehended that the Respondent suggests otherwise.
21. It is an institution in the sense that it is a century old association with a large group of members governed by its constitution which sets out its purposes; an organizational structure, a board of directors; premises and, generally is an undertaking of substance ( Mayor of Manchester v MacAdam (1896) 3 TC 492; ICLR v FCT supra at 665). The Respondent does not, apparently, argue to the contrary.
21A. It is submitted that the Applicant therefore meets the requirements of the Payroll Tax Act. It is a non profit organisation with at least one charitable object. It is also an institution which the Chief Commissioner should have considered charitable and approved it for exemption."

12 The Chief Commissioner takes the view that "the threshold test" of whether an organization is charitable explained in Royal Australian College of Surgeons v The Federal Commissioner of Taxation [1943] 68 CLR 436 (the Surgeons' case) applies to both ss 10(1)(j) and (k).

13 The Chief Commissioner's submissions on this point are dealt with in clauses 6 to 14 of the Respondent's written outline of submissions, which read as follows:

'6 In the Surgeons case the Court states that it is necessary to determine the main and dominant objects of the organization. Our submission is that the main object of this Union is bird watching and associated activities which make it a self interest group.
7 The objects of this Union are included in the memorandum of Association. Some of the objects are reproduced in paragraph 5 of the Applicant's submission and there is no need to reproduce them here. Per 5(a), one of the objects is "to promote the study and knowledge or ornithology and its advancement and popularization and to take all of and whatsoever means as may be considered most effective to preserve and protect the avifauna indigenous to or occurring in the Australian region or elsewhere and particularly, New Guinea and New Zealand and the islands and waters adjacent or contiguous thereto."
8 Other objects in the memorandum 5(c) and (d) includes libraries and museums etc and the maintenance thereof, for the members of the union and to print, publish and distribute certain magazines etc, which are for the use of their members.
9 Further, it is commented on page 1 of the Annual Report for 1999 it states:
"Birds Australia membership is open to anyone interested in birds and their habitats, and concerned about the future of our avifauna".
10 It is submitted that the Union has two main objects;
Firstly to promote the study and knowledge of ornithology and its advancement
and popularization; and
Secondly to preserve and protect the avifauna indigenous to Australia.
11 It is our submission that the primary object is to promote the study and knowledge of ornithology and its advancement and popularization, which is a self-interest object. A secondary object is the preservation and protect of the avifauna indigenous to Australia.
12 It is agreed that in the decision of Attorney General and Sawtell (1978) 2 NSWLR 200, Holland J said that the preservation of native wildlife was charitable. However this charitable object is only secondary and does not help the Union get over the threshold test.
13 As the Union does not pass the threshold test it is not exempt from payroll tax. It is our submission that the Union is a self interest group which has some ancillary benefits that accrue to the public, however, the main object of the Union results in benefits which accrue to a special class of people, not to the public generally."

14 I will deal with jurisdiction issue first. At the hearing I was concerned as to whether the matters were properly before the Tribunal and that the Tribunal had jurisdiction to consider the matters. The Chief Commissioner and the applicant were invited to submit written submissions on this issue. In his fairly short submission the Chief Commissioner concedes that the Tribunal has jurisdiction and cites s 86(1) of the TA Act and submits as follows:

"No assessment of the Applicant was made by the Commissioner however the Commissioner made a decision under a taxation law which was not 'a non-reviewable decision'. This decision was that the Applicant was not eligible for an exemption of payroll tax on the grounds that it was not a charitable institution for the purposes of the Payroll Tax Act (NSW) 1971 s10(1),(k)&(j) and that one of its main objects was not charitable for the purposes of ss(1)(j). It is this decision that is being appealed from."

15 The applicant agrees with these submissions and adds no further arguments to support this view.

16 Section 96 of the TA Act provides that a taxpayer may apply to the Tribunal for a review of a "decision of the Chief Commissioner that has been the subject of an objection". Section 86 of the TA Act gives taxpayers a right, if dissatisfied with an assessment issued by the Chief Commissioner or any other decision of the Chief Commissioner made under a taxation law, to lodge an objection. The term "decision" is not defined in the TA Act and accordingly will for definitional purposes take its ordinary meaning. Taxation laws for purposes of the TA Act are defined in s 4 of the TA Act and include the PRT Act.

17 There are several provisions in the taxation laws administered by the Chief Commissioner which require him to make a decision. The short question for purposes of the present matter relates to the role of the Chief Commissioner in relation to paragraphs (j) and (k) of s.10(1) of the PRT Act. Paragraph (j) merely provides for an exemption from pay-roll tax wages paid or payable "by a non-profit organisation (other than a school or college, statutory body or an instrumentality of the State) having as one of its objects a charitable, benevolent, philanthropic or patriotic purpose". On the other hand, subsection (k) exempts wages paid or payable "by a society or institution (other than a school or college, statutory body or an instrumentality of the State) which: (I) is in the opinion of the Chief Commissioner, a charitable society or institution, and (ii) is for the time being approved by the Chief Commissioner for the purposes of this paragraph". (emphasis added)

18 There is no doubt that under paragraph (k) the Chief Commissioner is clearly required to make a decision if an application is made to him to determine the status of a society or an institution. Any decision made by the Chief Commissioner would be a decision made under a taxation law and, if dissatisfied, a taxpayer would have the right to object against it as provided by s. 86 of the TA Act.

19 However, the role of the Chief Commissioner in relation to paragraph (j) is quite different. The exemption in my opinion operates as a matter of law. The Chief Commissioner's views as to the status of a society or institution would be no more than an advisory opinion and would not constitute a "decision". A recipient of any such advice can either ignore it or refuse to accept the view and the only way that the Chief Commissioner can implement any such view would be by making an assessment against the relevant taxpayer.

20 The term "decision" is not defined in the legislation and some assistance is available in defining the term from decisions of the courts in relation to the term "decision" as used in section 3 of the Commonwealth Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). In considering what constitute a "decision" for this Act, the Full High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 took the view that the word "decision" means an ultimate or operative determination and not a mere expression of opinion or statement which can have no effect on a person. The principal judgment was handed down by Mason CJ (at 335-338) provided the following reasoning for this view:

'The fact that the ADJR Act is remedial statute providing for review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision"…
Nonetheless other considerations point to the word having a relatively limited field of operation……
The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment..
Another essential quality of a reviewable decision is that it be a substantive decision….
My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan (1982) FLR 184; 41 ALR 319 when he said (at p 197; p331 of ALR) that "it may well be that the word 'decision' means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person". However I would not wish for myself to place emphasis on the words "of itself" in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision beyond reach. Review of the ultimate decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.'

21 In my opinion a similar approach should be taken in construing the term "decision" as used in the TA Act. There is also a stronger argument for the approach that the term "decision" in the TA Act be construed to mean a final decision made by the Chief Commissioner on the basis of what the Chief Justice said would be the position if the term was found in legislation providing for appeals from final decisions disposing of issues between parties. In this matter, the Chief Commissioner has merely expressed an opinion as to status of the applicant in relation to paragraph (j). He has not made any determination nor was he given any power by the paragraph to make a decision. The applicant would, of course, be entitled to object to any assessment that the Chief Commissioner issues pursuant to his view of the applicant's status. But until that occurs, the applicant would not be entitled to object against an opinion expressed by the Chief Commissioner. In my opinion, the Chief Commissioner was in error to treat the opinion as a "decision" for purposes of the objection provisions found in the TA Act. The Chief Commissioner did not have any jurisdiction under the law to do so. The Tribunal likewise has no jurisdiction to review an objection decision that was not made in accordance with the law.

22 The Tribunal has, however, jurisdiction to consider the objection decision in relation to paragraph (k) of s 10(1) of the PRT Act and I will now proceed to deal with that part of the objection decision.

23 Paragraph (k) gives the Chief Commissioner power to determine whether in his opinion a society or institution is a charitable society or institution. Although the Chief Commissioner is given a wide power under this paragraph, he can only exercise it according to accepted law and principles relating to what constitutes a "charitable society or institution".

24 It is now well accepted that "charitable" has its technical legal meaning (cf Chesterman v FC of T (1923) 37 CLR 317) and it is also clearly established that "whether or not [an} institution is relevantly charitable will be determined according to the principles on which the Court of Chancery would act in connection with an alleged charity. That means that the indications contained in the preamble to the Statute of Elizabeth 1601 and the classifications in Lord Macnaghten's speech in Commissioner for Special Purposes of Income Tax v Pemsel (Pemsel's Case) [1891] A.C. 531, at p. 583 are to be observed in deciding whether or not the institution is charitable for the purposes of the Act." (Incorporated Council of Law Reporting v FC of T (1971) 125 CLR 659 at p.666 per Barwick CJ) His Honour went on to say that:

"Not every purpose beneficial to the community is a charitable purpose but only those which are within the equity of the preamble to the Statute of Elizabeth. The purpose must not merely be beneficial: it must also be charitable. See In re Macduff v Macduff (1896) 2 Ch.451; Attorney-General v. National Provincial and Union Bank of England and Others (1924) A.C. 262; Williams' Trustees v. I.R.Commrs. (1947) A.C. 447 and in In Re Strakosh Decd.,Temperley v. Attorney-General (1948) Ch. 37."

25 In Pemsel's Case Lord Macnaghten identified "charitable purposes" as falling into four principal divisions:

"….trusts for relief of poverty, trusts for advancement of education; trusts for advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads."

26 Of the four principal divisions of "charitable purposes", the applicant relies upon only two, the advancement of education and other purposes beneficial to the community.

27 It is also now well established by case law that for a body to be regarded as a charitable institution its main or primary purpose must be charitable, although it may have other purposes concomitant and incidental to that purpose. There are several judicial statements to this effect. The one most quoted in cases is the statement by Gibbs J in Stratton v Simpson (1970) 125 CLR 138 at p 159 where his Honour said -

"It is established that 'an institution is a charitable institution if its main purpose is charitable although it may have other purposes which are merely concomitant and incidental to that purpose' or in other words if each of its objects is either charitable in itself or should be construed as ancillary to other objects which themselves are charitable: ( Congregational Union of New South Wales v Thistlethwayte (1952) 87 C.L.R. at pp 442 and 450."

28 The decision of the High Court in Royal Australasian College of Surgeons v FC of T(1943) 68 CLR 436 also supports the view that it is necessary to determine the main or dominant objects of an organization to consider its charitable status. The Chief Commissioner in his submissions refers to this as the "threshold test".

29 To qualify as a charity the activities of an organization have to benefit the public or a large part of the community. For example in Thompson v. FC of T (1959) 102 CLR 315 where the High Court held that a bequest restricted to the children of a masonic order in New South Wales who were prevented by incapacity from supporting their children, and children of the deceased brethren of the order, lacked the element of public benefit or advantage that is necessary in order to secure exemption from estate duty as a gift for public education purposes.

30 I now turn to the facts of this case. The applicant has some 7000 members and would be considered as a large organization which essentially promotes the study and knowledge of ornithology and its advancement and poularization and the preservation and protection of avifauna. The activities of the applicant include the publication of various journals and research studies, maintaining a library in Melbourne which has the largest and most complete collection of books and other bird related materials in Australia, operating four bird observatories and two reserves in New South Wales and involved in a number of conservation projects. The library is open to only members of the applicant and the journals are produced generally for the use of the members.

31 The applicant's case for exemption is based on two grounds which are found in following paragraphs of its written submission:

'18. The promotion of the study and knowledge of ornithology is its first dominant object and is, it is submitted, for the advancement of education and is beneficial to the community generally, but particularly to the scientific community.
In the alternative, if the scientific research of Birds Australia is not advancement of education, it is for the benefit of the community generally and would fall under the 4th head of charity.
19. The other dominant object of the Applicant is "to preserve and protect the avifauna of Australasia". In other words its other principal object is the conservation of nature and environment which, it is submitted, should be regarded as a purpose beneficial to the general community (see AG New South Wales v Sawtell (1978) 2 NSWLR 200)'

32 The Chief Commissioner's case is put quite simply on the basis that the applicant's "primary object is to promote the study and knowledge of ornithology and its advancement and popularization, which is a self interest object. A secondary object is the preservation and protection of the avifauna indigenous to Australia."

33 I will first deal with the advancement of education head of charity. It is common ground that the courts have construed "education" widely and is not confined to the traditional school, college or university study programs. Nor is it necessary to have examinations or award qualifications to qualify under this head. For example it has been held that a construction industry fund was charitable (Barclay v. Treasurer of Queensland (1996) 2 QdR 112) and that a property services industry training program was charitable (Property Security Industry Training Advisory Board v FC of T 1999 ATC 2076), provided of course if the requisite element of public benefit is present.

34 In the present matter, members of the applicant by becoming members, acquire for a consideration (a fee of $68) certain rights and benefits. They are entitled as members to receive journals and have access to the library. These activities cannot be regarded as being for the benefit of the public or a section of it. Their rights to journals and use of the library are obtained by paying a consideration. On this ground alone the applicant would fail to succeed under this head. In taking this view I accept that there is some benefit for the public at large with the publication of some of the well-researched books on Australian birds. That is in my opinion an incidental benefit and not the main or dominant object of the applicant.

35 Alternatively, the applicant has argued that if the activities of the applicant do not amount to the advancement of education, it is entitled to charitable status under the fourth head of charity - that the scientific research is for the benefit of the community generally. Clearly the community benefits in some way from the research that is carried out by the applicant but because that is not its primary or dominant object it fails to succeed on this ground as well.

36 The applicant further submits that its other dominant object of the Applicant is "to preserve and protect the avifauna of Australasia" and relying on the authority of AG New South Wales v Sawtell (1978) 2 NSWLR 200 this object should be "regarded as a purpose beneficial to the general community". Sawtell's case has held that the preservation of native wildlife is a charitable purpose because it benefits the community generally. However, for the applicant to succeed it must demonstrate that this is its primary object. I agree with the Chief Commissioner's submission that this is only a secondary object of the applicant.

37 When all facts and surrounding circumstances are taken into account one has to conclude that the applicant is primarily, as the Chief Commissioner has submitted, a "self interest" body. Members do more than just bird watching and there is a useful contribution to the study of Australian birds and preservation and protection of Australian avifauna. But these contributions are not as a result of its primary objects and they only provide some incidental public benefit.

38 Accordingly, the objection decision made by the Chief Commissioner in relation to paragraph (k) of ss 10(1) and under review must be affirmed.