Trinity College Gawler Inc. v Commissioner of State Taxation

[2023] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

TRINITY COLLEGE GAWLER INC. v COMMISSIONER OF STATE TAXATION

[2023] SASC 178

Judgment of the Honourable Justice Blue  

TAXES AND DUTIES - PAYROLL TAX - LIABILITY TO TAXATION - GENERALLY

TAXES AND DUTIES - PAYROLL TAX - OBJECTIONS, APPEALS AND REVIEWS

TAXES AND DUTIES - PAYROLL TAX - LIABILITY TO TAXATION - EXEMPTIONS - NON-PROFIT ORGANISATIONS - OTHER NON-PROFIT ORGANISATIONS

Appeal against a decision by the Treasurer confirming a decision by the respondent that (except in respect of two exercise physiologists and two dietitians) the applicant is not exempt from payroll tax under the Payroll Tax Act 2009 (SA) in respect of wages paid to employees working at its STARplex centre.

Trinity operates five schools and one early learning centre and has a total of approximately 3,700 students. It is the largest school in South Australia. Wages paid to its employees other than those working at Starplex are exempt under the education exemption.

Starplex includes a Swim Centre, Fitness Centre, Courts, Theatre, Shop and Creche. Trinity staff working at Starplex work in those areas and in reception, membership and promotions, training and management. 

Trinity contends that wages paid to its employees working at Starplex are exempt under the education exemption conferred by section 49 of and clause 10 of Schedule 2 to the Act. The Commissioner contends that this exemption does not apply because the condition that the wages be paid to an employee engaged exclusively in work of a kind ordinarily performed in connection with the conduct of schools or colleges providing education of that kind is not met.

Alternatively Trinity contends that wages paid to Starplex employees other than those working in the Theatre or StarStore are exempt under the health services exemption conferred by section 51 of the Act. The Commissioner contends that this exemption does not apply because the condition that the wages be paid by an employer who provides health services is not met and alternatively the condition that the employee be engaged exclusively in the provision of health or incidental services is not met.

Alternatively Trinity contends that wages paid to Starplex employees are exempt under the charitable purpose exemption contained in section 48(1)(c) of the Act. The Commissioner contends that this exemption does not apply because the exception to the exemption applies, namely Trinity is a school or college within the meaning of section 48(1)(c) of the Act.

Held:

1If wages paid in respect of part of the work performed by an employee are exempt under one exempting provision and wages paid in respect of the balance of the work are exempt under another exempting provision of the Act, the wages are exempt (at [236]).

2The charitable exemption, the health services exemption and the education exemption in the Act require exclusive engagement both on a monthly basis in respect or monthly returns and payments and an annual basis in respect of annual returns, payments and adjustments (at [255]).

3The limitation in paragraph (b) of clause 10 of Schedule 2 to the Act limits the education exemption to those schools below tertiary level that are commonly understood as being part of a general hierarchy that includes (but is not necessarily limited to) primary, secondary and tertiary. However, the limitation does not confine the exemption to the provision of formal, compulsory school education mandated by the Education Act 1915 (SA) or its successors (at [312]).

4The reference to a “period” in the chaussette to clause 10 of Schedule 2 to the Act is a reference to the month the subject of monthly returns and payments in the first instance and ultimately to the financial year the subject of annual returns and payments and adjustment under section 83. The test of exclusive engagement therefore ultimately applies to the full financial year (at [347]).

5The word “ordinarily” in the chaussette to clause 10 of Schedule 2 to the Act means commonly and is used in contradistinction to “extraordinarily” such that the work need not be performed in a majority of other schools (at [384]).

6The word “exclusively” in the chaussette to clause 10 of Schedule 2 to the Act is subject to the principle that the law does not have regard to trifles such that, if an employee performs a trivial amount of work which is not work of a kind ordinarily performed, that would not prevent the test being satisfied. However, if a significant amount of work is not of a kind ordinarily performed, the test is not satisfied (at [400]-[401]).

7The applicant has established that its employees who work only in the Fitness Centre, the Swim Centre, the Courts and/or the Theatre are engaged exclusively in work of a kind ordinarily performed in connection with the conduct of schools providing education of the kind and are exempt under the education exemption contained in clause 10 of Schedule 2 of the Act (at [419], [430], [444], [456]).

8The applicant has not established that its employees who work in whole or in part in the Shop, the Creche, reception, membership and promotions, training and/or management are engaged exclusively in work of a kind ordinarily performed in connection with the conduct of schools providing education of the kind or are exempt under the education exemption (at [462], [467], [470]-[472]).

9Paragraph (b) of the definition of health service in clause 11 of Schedule 2 to the Act encompasses a proactive service designed to afford protection against illness, abnormality or disability but only a specific illness, abnormality or disability or class thereof (at [488]).

10Paragraph (a) of the definition of health service in clause 11 of Schedule 2 to the Act encompasses a proactive concept of a service whose purpose is to advance a person’s good health. It is not confined to health services of a kind commonly provided in hospitals and other health care settings. Although the effect of the service may be evidentially relevant to identifying its purpose, it is the purpose and not the effect which must be established for the exception to apply and beneficial effect on health is neither necessary nor sufficient to establish the exemption (at [516]).

11The applicant has established that it provides a health service to attendees at the Fitness Centre (at [538], [548], [552]).

12The applicant has established that its employees who work only in the Fitness Centre are (other than in providing educational instruction) engaged exclusively in the provision of health services and the wages paid to them are exempt under the health exemption contained in section 51 of the Act (at [569]).

13The applicant has not established that its employees who work in whole or in part elsewhere at Starplex are engaged exclusively in the provision of health services or that the wages paid to them are exempt under the health exemption contained in section 51 of the Act (at [587], [598], [604], [607]).

14The reference in section 48 of the Act to a school or college is a reference to the entity rather than to the endeavour carried on by the entity. The applicant is not eligible for exemption under the charitable purpose exemption contained in section 48(1)(c) of the Act (at [641], [646]).

15Appeal allowed. Parties to be heard concerning the orders to be made to dispose of the appeal (at [655]).

Payroll Tax Act 2009 (SA) ss 6, 7, 8, 48, 49, 51, 52, 55, 56, 84, 85, 86, Sch 2 cll 10, 11, 12, 14, 15; Taxation Administration Act 1996 (SA) ss 8, 9, 18, 82, 88, 92, 97, 98; Associations Incorporation Act 1985 (SA); Associations Incorporation Act 1956 (SA); Payroll Tax Act 1971 (SA) s 12; Payroll Tax Act 2007 (NSW); Payroll Tax Act 2007 (Vic); Payroll Tax Act 2008 (Tas); Payroll Tax Act 2009 (NT); Payroll Tax Act 2011 (ACT); Fire and Emergency Services Act 2005 (SA); Pay-roll Tax Act 1941 (Cth) s 15; Pay-roll Tax Assessment Act 1941 (Cth); Pay-roll Tax Assessment Act 1954 (Cth); Pay-roll Tax Assessment Act 1966 (Cth); Pay-roll Tax Act Amendment Act 1980 (SA); Pay-roll Tax Act Amendment Act 1983 (SA); Pay-Roll Tax (Harmonisation Project) Amendment Act 2008 (SA); Payroll Tax (Exemption for Small Business) Amendment Act 2018 (SA); Education Act 1915 (SA) ss 41, 42; Education Act 1972 (SA) ss 75, 76; Education and Children’s Services Act 2019 (SA) ss 60, 67; Acts Interpretation Act 1901 (Cth) s 15AB; Legislation Interpretation Act 2021 (SA) s 19, referred to.
Australian Wool Testing Authority Ltd v Federal Commissioner of Taxation (1990) 21 ATR 877; Cyril Henschke Pty Ltd v Commissioner of State Taxation [2008] SASC 360, (2008) 104 SASR 1; Tourism Holdings Australia Pty Ltd v Commissioner of Taxes for the Northern Territory [2005] NTCA 3, (2005) 15 NTLR 80; Cromer Golf Club Ltd v Downs [1971] 1 NSWLR 963; Cromer Golf Club Limited v Downs (1973) 47 ALJR 219; Commissioner of Taxation v The Leeuwin Sail Training Foundation Limited (1996) 68 FCR 197; Commissioner of Taxation v Australian Airlines Limited (1996) 71 FCR 446; The Buddhist Society of Western Australia Inc v Commissioner of Taxation (No 2) [2021] FCA 1363; The National Institute of Dramatic Art v Chief Commissioner of State Revenue (1996) 71 FCR 446; KinCare Community Services Limited v Chief Commissioner of State Revenue [2019] NSWSC 182; Ewin v Vergara (No 3) 2013 FCA 1311; Redman v Return to Work Corporation of South Australia [2021] SASCA 25; Grain Growers Ltd v Chief Commissioner of State Revenue (NSW) [2016] NSWCA 359, (2016) 93 NSWLR 415; Hygienic Lily Ltd v Deputy Federal Commissioner of Taxation (1987) 13 FCR 396; Lansell House Pty Ltd v Federal Commissioner of Taxation [2011] FCAFC 6, (2011) 190 FCR 354; Hanna v Commissioner Community and Health Services Complaints Australian Capital Territory [2002] ACTSC 111, (2002) 171 FLR 185; Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1 , considered.

TRINITY COLLEGE GAWLER INC. v COMMISSIONER OF STATE TAXATION
[2023] SASC 178

Civil

1. BLUE J:   The applicant Trinity College Gawler Inc (Trinity) appeals against a decision by the Treasurer confirming a decision by the respondent Commissioner of State Taxation (the Commissioner) that (except in respect of two exercise physiologists and two dietitians) Trinity is not exempt from payroll tax under the Payroll Tax Act 2009 (SA) (the Act) in respect of wages paid to employees working at its STARplex centre (Starplex).

2. Although characterised as an “appeal” under the Taxation Administration Act 1996 (SA) (the Administration Act), it is common ground that the question of exemption is to be determined on a de novo basis.

3. Trinity operates five schools and one early learning centre and has a total of approximately 3,700 students. It is the largest school in South Australia. Wages paid to its employees other than those working at Starplex are exempt under the education exemption.

4. Starplex includes a Swim Centre, Fitness Centre, Courts, Theatre, Shop and Creche. Trinity staff working at Starplex work in those areas and in reception, membership and promotions, training and management. 

5. The Act provides for various exemptions in respect of wages paid by defined employers or to defined employees or in defined circumstances. Those exemptions include:

   1wages paid by a school or college provided that defined conditions are met, the exemption being conferred by section 49 of and clause 10 of Schedule 2 to the Act (the education exemption);

   2wages paid by an employer who provides health services provided that defined conditions are met, the exemption being conferred by section 51 of the Act (the health services exemption); and

   3wages paid by a non-profit organisation having a charitable purpose as its sole or dominant purpose provided that defined conditions are met, the exemption being conferred by section 48(1)(c) of the Act (the charitable purpose exemption).

6. Trinity contends that wages paid to its employees working at Starplex are exempt under the education exemption; alternatively wages paid to Starplex employees other than those working in the Theatre or StarStore are exempt under the health services exemption; alternatively wages paid to Starplex employees are exempt under the charitable purposes exemption.

7. The Commissioner contends that the education exemption does not apply because the condition that the wages be paid to an employee engaged exclusively in work of a kind ordinarily performed in connection with the conduct of schools or colleges providing education of that kind is not met.

8. The Commissioner contends that the health services exemption does not apply because the condition that the wages be paid by an employer who provides health services is not met and alternatively the condition that the employee be engaged exclusively in the provision of health or incidental services is not met.

9. The Commissioner contends that the charitable purposes exemption does not apply because the exception to the exemption applies, namely Trinity is a school or college within the meaning of section 48(1)(c) of the Act.

   Background

10. Trinity applied to the Commissioner in April 2017 for an exemption decision in respect of wages paid to employees working at Starplex with ongoing effect. Evidence was adduced concerning the position from the financial year 2016/17 onwards (and indeed in many cases concerning the position before 2016/17). The operations of Trinity have been relatively stable since at least 2016/17. In general terms a description of the present position applies also to the position as at 2016/17 and during the intervening period.

11. For ease of reference, I generally use the present tense to describe the operations of Trinity and in general terms this is to be understood as a reference to the position as at 2016/17 onwards.

    Trinity

12. Trinity is a not for profit association incorporated under the Associations Incorporation Act 1985 (SA). Trinity was incorporated on 15 February 1984 as an association under the Associations Incorporation Act 1956 (SA).

13. Trinity is a registered charity, having been registered with the Australian Charities and Not-for-profits Commission since 3 December 2012.

14. Trinity operates five schools and one early learning centre in the larger Gawler region:

    ·Trinity College North situated on Trinity land at Evanston South providing education from reception to year 10 (commencing in 1985);

    ·Blakeview School situated on Trinity land at Blakeview providing education from reception to year 10 (commencing in 1991);

    ·Trinity College South situated on Trinity land at Evanston South providing education from reception to year 10 (commencing in 1993);

    ·Montessori Early Learning Centre situated on Trinity land at Evanston South providing pre-reception education (commencing in 1996);

    ·Gawler River School situated on Trinity land at Angle Vale providing education from reception to year 10 (commencing in 2000); and

    ·Trinity College Senior situated on Trinity land at Evanston South providing education for years 11 and 12 (commencing in 2006).

15. Trinity College North, Trinity College South, Trinity College Senior, Montessori Early Learning Centre and Starplex are all situated on one parcel of land (the subject of multiple titles) at Evanston South.

16. There are approximately 3,700 students enrolled at the six Trinity schools. This comprises approximately 100 students at the early learning centre; 1,900 students in reception to year 6; 1,200 students in years 7 to 10; and 500 students in years 11 and 12. Trinity is the largest school in South Australia and one of the largest in Australia.

17. Trinity is open to students without regard to religion, ethnicity, gender or means.

    Starplex

18. In 1996 Trinity began investigating the feasibility of constructing and operating a multi-use complex for use by Trinity students and the broader community. Leslie Martin, then Business Manager of Trinity, was closely involved in the investigation and, in due course, construction and operation of Starplex.

19. The purpose of Starplex was to ensure that students receive a high-quality and balanced education, incorporating physical education and sport, and also make available those facilities for use by the broader community to reduce operating costs and benefit the broader community.

20. Providing facilities for students at schools requires substantial capital infrastructure and capital expenditure. It makes sense at the microeconomic level for a school effectively to reduce the cost of that infrastructure by making it available for a fee to members of the community. It makes sense at the macroeconomic level to maximise the use of such infrastructure by enabling its use by members of the community consistently with prioritising use by students. These benefits have been recognised by various schools across Australia as described below. They have also been recognised by Australian governments as described below.

21. Additional land at Evanston South was purchased by Trinity on which Starplex was to be constructed.

22. Construction of the building to house Starplex was completed in 2000. Starplex commenced operating in June 2000. In 2003 and again in 2005 the building was extended and modified. It then comprised approximately 9,000 square metres.

23. Upon commencement in 2000, Mr Martin was appointed General Manager of Starplex in lieu of his previous role as Business Manager. He continued in that role until his retirement in December 2019. Bradley Wenske succeeded Mr Martin as General Manager in December 2019.

24. Starplex comprises the following principal functional and geographical components:

    ·gymnasium (Fitness Centre) comprising a full gymnasium; five fitness training rooms; exercise physiology, dietitian and massage rooms; and offices and associated equipment and personnel;

    ·swimming centre (Swim Centre) comprising two indoor heated 25 metre swimming pools, change rooms and associated equipment and personnel;

    ·courts stadium (Courts Centre) comprising four courts, training room, office space and associated equipment and personnel;

    ·Hewitson Theatre (Theatre) comprising a 1,200 seat theatre, workshop and associated equipment and personnel;

    ·shop (StarStore) selling school uniforms, gymwear, swimwear and other items and associated equipment and personnel;

    ·creche (Creche) comprising a creche area and associated equipment and personnel;

    ·reception/membership/administration area and associated equipment and personnel; and

    ·tenanted areas (including a café).

25. As at 30 June 2018 there were 125 staff positions for Trinity employees working at Starplex. Some of these positions were not actually filled as at that date. A small number of employees were full time employees. The vast majority were casual employees working part time. The number of employee positions and the full-time equivalent for each area within Starplex as at 30 June 2018 were as follows:

Area	Staff numbers	FTE
Swim Centre	46	15.72
Fitness Centre[1]	42[2]	11.11
Courts Centre	10	5.6
Theatre	4[3]	1.02
StarStore	4[4]	2.45
Creche	6[5]	1.77
Reception	5	3.2
Membership and promotions	5	3.65
Training	1	0.64
Management	2	2
Total	125	47.15

[1]    Includes two exercise physiologists, two dietitians and two masseurs.

[2]    One employee worked 10 hours per week in the Fitness Centre and 16 hours per week in Membership.

[3]    One employee worked 20 hours per week in the Theatre and 10 hours per week in Membership.

[4]    One employee worked 6.5 hours per week in the StarStore and 1.5 hours per week in the Creche.

[5]    One employee worked 2 hours per week in the Creche and 8 hours per week in Reception.

Swim Centre

1. The Swim Centre employees as at 30 June 2018 comprised:

   1a Swim Centre manager and assistant manager;

   2three swim coaches (who each held a coach qualification), one of whom was also program coordinator and another of whom also worked as a lifeguard and pool plant operator;

   341 swimming instructors (who each held a swimming instructor qualification), of whom three were also aqua aerobics instructors (who also held aqua aerobics instructor qualifications);

   414 lifeguards (who each held lifeguard qualifications), all of whom were also swimming instructors or a coach and are counted in the 41 employees in item 3 above and of whom eight were also pool plant operators (who each also held pool plant operator qualifications).[6]

   [6]    One swimming instructor in item 3 was not a lifeguard but was also a pool plant operator.

2. The Swim Centre is used by Trinity students on a daily basis as part of their curricular or co-curricular activities.[7] This comprises:

   [7]    I address what I mean by curricular and co-curricular activities below.

   ·the Physical Education curriculum for reception to year 7 includes swim development, aquatic skills and water safety lessons delivered by swimming instructors and lifeguards at the Swim Centre;

   ·the Health and Physical Education curriculum for years 8 to 10 includes swim development, aquatics, water safety and water-based fitness lessons delivered by swimming instructors and lifeguards at the Swim Centre;

   ·the Physical Education curriculum for years 11 and 12 includes swim development, aquatics, water safety and water-based fitness lessons delivered by swimming instructors and lifeguards at the Swim Centre;

   ·the Physical Education curriculum includes an optional Water Rescue Training Course formerly known as the Bronze Medallion (attracting SACE points) delivered by swimming instructors and lifeguards at the Swim Centre (also open to members of the community);

   ·the curriculum includes an optional Swimming and Water Safety Instructor Course (attracting SACE points) delivered by swimming instructors and lifeguards at the Swim Centre (also open to members of the community);

   ·each of Trinity’s five schools have separate swim carnivals at the Swim Centre;

   ·students from each separate year level from year 7 to year 12 participate in time trials on an annual or more frequent basis at the Swim Centre;

   ·students in Trinity’s swim teams use the Swim Centre for training;

   ·Starplex hosts interschool swimming meets at the Swim Centre at which Trinity students compete against students from other schools;

   ·students and teachers from an individual year level play water-based games at the Swim Centre.

3. Trinity students engage in extracurricular activities[8] on payment of fees at the Swim Centre. These include:

   ·learning to swim at the Swim School described below (also undertaken by students from other schools);

   ·training and participating in club competitions and events at Squad Swim described below (also open to students from other schools and adults);

   ·lap swimming (also open to members of the community).

   [8]    I address what I mean by extracurricular activities below.

4. The Swim Centre is also used by members of the community who pay a membership fee on a fortnightly, quarterly or annual basis (or on occasions pay a one-off fee). The basic Swim Centre membership fee was $15.50 per week in 2016/17 but it was higher (described below) for those attending Swim School or Squad Swimmers. Alternatively the basic Full Club membership fee (covering the Fitness Centre as well as the Swim Centre) was $22.90 per week in 2019 but it was discounted for certain categories including My Fit Life and Department of Veteran Affairs sponsored members. 

5. Usage by members of the community comprises:

   ·learning to swim for children at the Swim School delivered by swimming instructors with one lifeguard and pool plant operator[9]  at the Swim Centre (membership fee $16.00 per week in 2016/17);

   ·learning to swim for adults at Adult Swim delivered by swimming instructors with one lifeguard and one pool plant operator at the Swim Centre (membership fee $16.00 per week in 2016/17);

   ·undertaking the Swimming with a Disability program delivered by swimming instructors with one lifeguard and one pool plant operator at the Swim Centre (membership fee $16.00 per week in 2016/17);

   ·undertaking the Water Rescue Training course delivered by swimming instructors with one lifeguard and one pool plant operator at the Swim Centre for a course fee;

   ·undertaking the Swimming and Water Safety Instructor course delivered by swimming instructors with one lifeguard and one pool plant operator in partnership with Active Training at the Swim Centre for a course fee;

   ·undertaking the Pool Lifeguard Training course delivered by lifeguards (in partnership with Active Training) at the Swim Centre for a course fee;

   ·training and participating in club competitions or events in a Swim Squad (competitive squad, non-competitive squad or fitness squad) under the banner of the Starplex Swim Club, which is a separate non-profit organisation run by parents and volunteers (Trinity charges swimmers a weekly fee, depending on the specific squad, for use of the pool and work undertaken by Swim Centre coaches and swimming instructors with one lifeguard and pool plant operator and swimmers also paid the Club a membership fee);

   ·attending fitness classes (Aqua Aerobics, Deep Water Aqua, Gentle Movers and AquaHIT, prenatal and postnatal) delivered by Swim Centre and Fitness Centre staff;

   ·attending hydrotherapy sessions;

   ·lap swimming.

   [9]    Whenever one lifeguard and one pool plant operator is mentioned, it may or may not be the same person.

6. The predominant usage of the Swim Centre by members of the community is for the Swim School. In 2016/17 there were 1,329 swim school members (80 per cent) compared to 253 squad swimmers compared to 94 basic swim members out of a total Swim Centre membership of 1,676. Trinity students comprised 297 (18 per cent) out of the total.

7. Eight other schools in the local area also use the Swim Centre for their curricular and co-curricular water-based activities on payment of a fee per student per attendance. The fee is higher for private schools because their students are taught by Starplex swimming instructors (at Trinity’s expense) whereas government schools employ Starplex swimming instructors directly to teach their students while attending the Swim Centre. Starplex pool lifeguards and pool plant operators perform their functions for the benefit of the other schools’ students when their students are attending the Swim Centre.  

8. In addition to the above usage, lanes in the pools are hired by sporting or other community clubs (including the Starplex Swim Club which uses the Swim Centre for carnivals) in periods when they are not required by Trinity or other schools for their own usage.

9. The Swim Centre is open between 6 am and 8 pm on weekdays and 8 am and 2 pm on weekends.

10. Usage of the pools between 9.30 am and 1.30 pm on weekdays is allocated to school programs. Usage between these hours on a given day is allocated to one of the five Trinity schools or one of the eight other schools who use the Swim Centre for their water-based curricular and co-curricular activities. Overall usage between these hours is allocated approximately two thirds to Trinity schools and one third to non-Trinity schools. During these hours, there is also some usage of the pools for other purposes.

11. The proportion of curricular usage of the Swim Centre by Trinity students out of total usage is about 50 per cent. In 2016/17 curricular usage by Trinity students was 76,380 attendances out of a total of 160,101. There needs to be added to this co-curricular and extracurricular usage by Trinity students, which were not separately recorded but which would extend Trinity usage above 60 per cent. There was also significant usage by other schools (as described above) which would extend school usage further.

    Fitness Centre

12. The Fitness Centre employees as at 30 June 2018 comprised:

    ·a Fitness Centre manager;

    ·12 personal trainers (who each held a Certificate IV Fitness and Personal Training qualification), of whom five were also group fitness instructors;

    ·five gym instructors (three of whom held a Certificate IV Fitness and Personal Training or Les Mills GEL qualification), one of whom was also gym administrator;[10]

    ·two dance instructors (who each held a dance instructor qualification, of whom one was also a group fitness instructor);

    ·16 group fitness instructors (who held at least a Certificate III Fitness or Les Mills GEL qualification) (plus the five personal trainers counted above, one of whom was also group fitness coordinator, plus one dance instructor counted above);

    ·two exercise physiologists;

    ·two dietitians; and

    ·two masseurs.

    [10] One gym instructor (who I find to be employee 58) worked 10 hours per week in the Fitness Centre and 16 hours per week in Membership.

13. The gymnasium contains free weights, pin loaded machines, hydraulic equipment and cardio equipment which are used for developing core muscle and bone strength and core body strength and improving fitness, lung capacity and blood flow.

14. The fitness training rooms comprise a studio one training room, cycling studio, Wellbeing Yoga and Pilates room, small group training room and personal training room.  They are used for group fitness classes and small group and personal training to provide cardio and strength workouts.

15. The other areas principally comprise the areas used by the exercise physiologists, dietitians and masseurs.

16. The Fitness Centre is used by Trinity students on a daily basis as part of their curricular or co-curricular activities. This comprises:

    ·the Physical Education curriculum includes group fitness classes (including Body Pump, RPM, Body Attack, CX Works and Pound Fit) delivered by group fitness instructors at the Fitness Centre;

    ·the year 11 subject Physical Education (Athlete Development) includes two strength and conditioning sessions per week at the Fitness Centre taught by Fitness Centre staff;

    ·the subject Certificate III in Fitness taught on Monday evenings by Fitness Centre staff;

    ·Trinity sports teams and individual student athletes undertake strength and conditioning sessions conducted by Fitness Centre staff.

17. The Fitness Centre is also used by members of the community who pay a membership fee on a fortnightly, quarterly or annual basis (or on occasions pay a one-off fee). The basic Fitness Centre membership fee was $15.90 per week in 2016/17 but it was discounted for Trinity students and Trinity parents and staff and some others. Alternatively the basic Full Club membership fee (covering the Swim Centre as well as the Fitness Centre) was $22.90 per week in 2019 but it was also discounted for certain categories including My Fit Life and Department of Veteran Affairs sponsored members. 

18. Usage by members of the community comprises:

    ·gym floor training and exercise supervised by Starplex gym instructors designed to commence with an induction session and to follow a written training/exercise program;

    ·a fitness and postural assessment undertaken by a Starplex personal trainer for an additional fee to provide a foundation for fitness programming and exercise plans;

    ·group fitness classes (including RPM, various Les Mills classes, Pilates, Yoga, Box Fit, Pound, Kids Fitness, Kids Dance) conducted by Starplex group fitness instructors, which are included in Full Club membership or subject of an additional fee for Fitness Centre members (group fitness classes are also taught off-site at other schools by Starplex staff);

    ·the My Fit Life program for people over 50 years of age (involving personalised exercise programs including balance training, dance and yoga) conducted by Starplex personal trainers for an additional fee;

    ·the Reshape Challenge (including personal training, small group training, walking groups and nutrition education sessions) conducted by Starplex personal trainers and nutritionists for an additional fee;

    ·personal training on a one-on-one or small group basis conducted by Starplex personal trainers for an additional fee;

    ·the subject Certificate III in Fitness taught by Starplex staff;

    ·consultation with or seminars by a Starplex exercise physiologist or dietitian for an additional fee;

    ·massages conducted by a Starplex masseur for an additional fee.

19. In addition, Starplex staff conduct strength and conditioning programs for local sports clubs at Starplex or at the local sports club in question.

20. The Fitness Centre is open between 6 am and 9 pm on weekdays and 7 am and 5 pm on weekends.

21. The proportion of usage of the Fitness Centre by Trinity students out of total usage is relatively small. In 2016/17 curricular usage by Trinity students was 3,200 attendances out of a total of 103,826. There needs to be added to this co-curricular and extracurricular usage by Trinity students, which were not separately recorded but which would extend Trinity usage. In 2016/17 108 Fitness Centre members were Trinity students out of a total membership of 1,551 (seven per cent).

    Courts Centre

22. The Courts Centre employees as at 30 June 2018 comprised:

    ·a Courts manager;

    ·a basketball & competition supervisor, a basketball & competition facilitator, a netball & competition facilitator, a futsal & competition supervisor, an inclusive sport & competition facilitator, a gymnastics instructor & competition supervisor, two gymnastics instructors & coaches and a Kindergym coordinator.

23. The Courts Centre is used by Trinity students on a daily basis as part of their curricular or co-curricular activities. This comprises:

    ·the Physical Education curriculum includes classes taught at the Courts Centre by Physical Education teachers with input from Courts Centre staff;

    ·Trinity sports teams (including basketball teams at each secondary level) train and play home games at the Courts Centre;

    ·Trinity teams compete at regional, state and national sports and robotics carnivals hosted at Starplex.

24. Trinity students engage in extracurricular activities on payment of fees at the Courts Centre. These include:

    ·training and competing in basketball, netball and futsal games at the Courts Centre described below (also open to students from other schools and adults);

    ·attending sports development camps at Starplex run during school holidays and over long weekends.

25. The Courts Centre is also used by members of the community who pay a fee to participate. Usage by members of the community comprises:

    ·training and competing in basketball, netball, futsal and social badminton games at the Courts Centre on payment of a fee;

    ·attending Super 6 Basketball Development Clinics, Little Lions Basketball Clinics, Basketball Umpires Clinics and Futsal Coaches Clinics on payment of a course fee;

    ·undertaking a high-end training and coaching program for junior athletes at the Starplex Basketball Academy on payment of a course fee;

    ·undertaking gymnastics programs for five to 13-year-old children, Kindergym programs for two to five-year-old children and Babygym programs for six month to two-year-old children on payment of a program fee;

    ·participating in inclusive school holiday programs and basketball carnivals for people living with a disability on payment of a fee.

26. In addition to the above usage, individual courts are hired by a local basketball club for training and competition, by a local netball and a local baseball club for training and by Basketball SA for training clinics on payment of a fee in periods when they are not required by Trinity for its own usage.

27. The Courts Centre is open between 7.30 am and 10.00 pm on weekdays, 7.30 am and 1.00 pm on Saturdays and 8.00 am and 2.30 pm on Sundays.

28. Usage of three of the four courts between 8.30 am and 3.30 pm on weekdays during all four terms is allocated to Trinity physical education classes. Usage of all four courts between 3.30 pm and 4.30 pm during terms 2 and 3 is allocated to Trinity school sports training.

29. The proportion of usage of the Courts Centre by Trinity students out of total usage is less than 50 per cent. In 2016/17 curricular usage by Trinity students was 27,920 attendances out of a total of 227,074. There needs to be added to this co-curricular and extracurricular usage by Trinity students, which were not separately recorded but which would extend Trinity usage. Trinity students comprised 116 basketball members out of a total of 626 basketball members; 32 netball members out of a total of 968 netball members; and 24 futsal members out of a total of 264 futsal members.

    Theatre

30. The Theatre employees as at 30 June 2018 comprised:

    ·a Coordinator Theatre & Conference Room Services; and

    ·three Light & Sound Technicians.[11]

    [11] One employee (agreed to be employee 120) worked 20 hours per week in the Theatre and 10 hours per week in Membership.

31. The Theatre is used by Trinity students as part of their curricular or co-curricular activities. This comprises:

    ·rehearsals and productions of drama, music, choir and other performing arts;

    ·church services and assemblies;

    ·award ceremonies, graduations and end of year concerts.

32. The Theatre is also used by outside groups who pay a hire fee to use the Theatre. Usage by outside groups comprises:

    ·other schools, universities, sporting associations and charities hire the Theatre for fundraising events, concerts and other productions, prayer and presentation evenings and graduations;

    ·other groups hire the Theatre for dinners, conventions and other functions;

    ·touring productions (such as the Wiggles and Playschool), comedians and other performers hire the Theatre from time to time for performances.

33. Large touring productions use their own technicians. Smaller productions use Starplex technicians.

34. The predominant use of the Theatre is by Trinity rather than external groups. In 2016/17 usage by Trinity students was 47,500 attendances out of a total of 60,800.

    StarStore

35. The StarStore employees as at 30 June 2018 comprised:

    ·a StarStore Manager; and

    ·three retail sales assistants.[12]

    [12] One employee (agreed to be employee 70) worked 6.5 hours per week in the StarStore and 1.5 hours per week in the Creche.

36. The StarStore is used by Trinity students to purchase:

    ·school uniforms;

    ·exercise wear (swimwear and fitness wear);

    ·giftware.

37. Members of the community use the StarStore to purchase:

    ·exercise wear (swimwear and fitness wear);

    ·giftware.

38. The StarStore is open between 8.30 am and 5.00 pm on weekdays (except between 1.00 pm and 2.00 pm) and between 9.00 am and 12.00 pm on Saturdays.

39. The predominant use of the StarStore is the purchase of Trinity school uniforms. Revenue in 2016/17 from the sale of school uniforms was $728,066 out of a total revenue of the StarStore of $1,059,032.

    Creche

1. The Creche staff in 2018 comprised six casual creche staff.[13]

   [13] One employee counted above who also worked in the StarStore also worked in the Creche. One employee (who I find to be employee 18) also worked in Reception.

2. The Creche is a free child minding service (gold coin donation encouraged) for parents and caregivers using Starplex facilities.

3. The Creche is open between 8.45 am and 12.15 pm and 3.30 pm and 6.15 pm on weekdays and between 9.00 am and 11.30 am on Saturdays.

   Other areas and staff

4. The General Manager is responsible for the overall management and operation of Starplex. The Administrator (Finance) is responsible for financial, information technology and general administration of Starplex.

5. The reception staff in June 2018 comprised two full-time and three casual reception staff.[14] Reception staff are responsible for providing a reception service to users of Starplex and dealing with membership enquiries and applications.

   [14] One employee counted above who worked in the Creche also worked in Reception.

6. The membership and promotions staff in 2018 comprised a full-time manager and four part-time or casual staff members.[15] The staff are responsible for developing new memberships and users of Starplex facilities, responding to enquiries, and relationships with existing members (including new programs and changes to services or programs) and users of Starplex facilities.

   Membership applications and induction procedures

   [15] One employee counted above also worked in the Fitness Centre. One employee counted above also worked in the Theatre.

7. Starplex has a pro forma membership application form which is used by applicants for certain membership categories (described below). The membership form currently in use which has been used since about 2020 was tendered as exhibit A3(b). The membership form which had been used between about 2014 and about 2020 was tendered as exhibit A3(c). The two versions (collectively the membership form) are largely the same in substance although they differ in form. For convenience, when referring to specific parts, I refer to the current version.

8. The membership form is required to be completed by applicants for Fitness Centre membership or Full Club membership encompassing Fitness Centre membership. Applicants who select a membership category encompassing Fitness Centre membership can, if they want, indicate that they wish to add group fitness classes (encompassed in the Full Club membership fee) or personal or small group training (additional fees). However, this is relatively uncommon and it is more common for members to apply for additional classes or training after they have commenced using the Fitness Centre.

9. The membership form is required to be completed by applicants for Swim Centre membership or Full Club membership (which encompasses Swim Centre membership) other than applicants for Swim School or Swim Squads. In other words, it is required to be completed by applicants who intend to undertake lap swimming and/or aqua aerobics (which are included in the basic Swim Centre or Full Club membership fee). Applicants for Swim School or Swim Squads complete part only of the membership form; completion of the full form not being required. Evidence was not adduced about which parts are completed. I infer that it is the name and contact details of the form and not the medical questions.

10. The membership form is not required to be completed by students undertaking curricular or co-curricular activities but only if they wish to participate in extracurricular activities in the Fitness Centre or the Swim Centre other than Swim School or Swim Squads.

11. Although there is provision on the membership form for an applicant to select Courts, completion of the form is not required for use of the Courts Centre and the form is rarely used in practice by those wishing to use the Courts Centre. Similarly, although there is provision for an applicant to select Creche, completion of the form is not required for and is rarely used in practice for use of the Creche.

12. The membership form contains several parts. It includes a page setting out the applicant’s details. It includes another page setting out membership details, including the Starplex area for which membership is sought, type of membership sought, membership category and details of programs which the applicant seeks to undertake.

13. The membership form also contains a page setting out medical details. This page asks 15 questions relevant to whether the applicant has a medical condition that might make it dangerous to participate in physical activity/exercise. Answers are contained in a blue column, a yellow column or a red column depending on whether the answer is yes or no.

14. The form indicates that:

    ·if the applicant answers any question in the red column, they should seek written advice from their general practitioner or allied health professional before undertaking physical activity/exercise;

    ·if the applicant answers any question in the yellow column, they should list on the form medications taken and/or allergies and if they have no other concerns about their health they may proceed to gym induction, if relevant, and undertake prescribed light to moderate physical activity/exercise;

    ·if the applicant answers all questions in the blue column, they may proceed to gym induction, if relevant, and undertake prescribed light to moderate physical activity/exercise.

15. Applicants for Fitness Centre membership or Full Club membership encompassing Fitness Centre membership have been required by Starplex policy to complete a screening form since about 2009.

16. The original version of the screening form was a “New Client Screening Form” used between about 2009 and about 2014 (exhibit LDM54) (the 2009 screening form). This form was developed by a roundtable organisation specific to the health and fitness industry.

17. The next version was an “Adult Pre-Exercise Screening Tool (V1, 2011)” used from about 2014 to about 2019 (exhibit LDM55) (the 2014 screening form). This form was developed by a committee chaired by Professor Norton comprising representatives of Fitness Australia, Exercise & Sports Science Australia and Sports Medicine Australia.

18. The current version is an “Adult Pre-Exercise Screening System (V2, 2019)” used since about 2019 (exhibit LDM56) (the 2019 screening form). This form was developed by a committee chaired by Professor Norton comprising representatives of Fitness Australia, Exercise & Sports Science Australia, Sports Medicine Australia and Exercise is Medicine Australia. It is a revised version of the 2014 screening form.

19. The 2014 screening form contained three stages, followed by a risk stratification:

    1Stage 1 is described as compulsory and contained seven questions. The aim is stated to be to identify individuals with a known disease or signs or symptoms of disease which may be at higher risk of an adverse event during physical activity/exercise. The stage was self-administered and self-evaluated. It states that, if the person answers no to all questions and had no other concerns about their health, they may proceed to undertake light to moderate intensity physical activity/exercise. It contained a table of exercise intensity guidelines defining, amongst other things, light and moderate exercise. It stated that, if the person answered yes to any question, the person should seek guidance from a general practitioner or appropriate allied health professional before undertaking physical activity/exercise.

    2Stage 2 was described as optional and contained 12 questions. The aim was said to be to identify those individuals with risk factors or other conditions to assist with appropriate exercise prescription. It was to be administered by a qualified exercise professional.

    3Stage 3 was also described as optional and contained five questions. The aim was said to be to obtain pre-exercise baseline measurements of other recognised cardiovascular and metabolic risk factors. It was to be administered by a qualified exercise professional.

    4The Risk Stratification was also to be completed by an exercise professional. It provided for a total of stage 2 when stage 3 was not completed and stated that, if there were more than two risk factors, the client may participate in light or moderate intensity activity/exercise. It provided for a total of stages 2 and 3 when stage 3 was completed and stated that, if there were less than two risk factors, the individual may participate in activity/exercise up to vigorous or high intensity.

20. The 2019 screening form contains two stages:

    1Stage 1 is described as compulsory and contains seven questions. The aim is stated in similar terms to the aim of stage 1 of the 2014 screening form. The stage may be self-administered and self-evaluated. It states that, if the person answers yes to any of the first six questions, the person should seek guidance from a general practitioner or appropriate allied health professional before undertaking physical activity/exercise. It states that, if the person answers no to the first six questions, the person should proceed to answer question 7. Question 7 is directed to the frequency and duration of physical activity/exercise levels at light, moderate or vigorous/high intensity in a typical week. If the total is less than 150 minutes per week, it is recommended that the person commence to undertake light to moderate intensity physical activity/exercise and increase volume and intensity slowly. Otherwise, the person can continue with their current physical activity/exercise intensity levels. It contains a table of exercise intensity guidelines defining light, moderate, vigorous and high intensity exercise.

    2Stage 2 is described as recommended and contains 18 questions. It is to be administered by an exercise professional to determine appropriate exercise prescription based on established risk factors.

21. There is an obvious overlap between the questions contained in the medical details section of the membership form and in the screening forms. The questions contained in the medical details section of the membership form effectively cover the questions contained in Stage 1 of the screening forms. As a result, the policy and procedure at Starplex was that Stage 1 of the 2014 screening form was not completed and the practice is that Stage 1 of the 2019 screening form is not always completed.

22. The following description applies to members seeking Fitness Centre membership (whether stand alone or part of a Full Club membership).

23. The policy and procedure at Starplex is that the membership form is completed by the applicant and given to the reception/membership staff on reception. The policy and procedure is that the reception/membership staff review the completed form, including the medical details section.

24. If a question has been answered in the red column, the reception/membership staff are to inform the applicant that they need to obtain a medical or allied health clearance before they can start using the Fitness Centre, book an induction in a few days’ or a week’s time to enable the clearance to be obtained and place a stop on the applicant’s membership account precluding access to the electronic access gate until the stop was lifted. The medical clearance is generally provided to the reception/membership staff. The policy and procedure is that reception/membership staff are to enter a record of the provision of the clearance in the software used by Starplex at the time (originally Links, then from 2017 Envibe, then from 2020 Links again).

25. If no question has been answered in the red column, the reception/membership staff are to book an induction and inform the applicant that it is highly recommended that they not use the Fitness Centre until they have completed the induction.

26. Until 2020 it was mandatory for every new member to attend an induction at the Fitness Centre. From 2020 new members can opt out of induction and approximately 15 per cent do so. Those who opt out are comfortable with how they should properly use the equipment and have experience exercising in a gym.

27. The induction is carried out by a fitness instructor. The policy and procedure is that they are provided with a copy of at least the medical details section of the membership form and are to check that the medical clearance has been provided when it is required. The instructor completes the screening form in conjunction with the member. As noted above, the policy and procedure was that stage 1 of the 2014 version was not completed because it duplicated the information in the application form.

28. The policy and procedure is that the fitness instructor discusses with the member answers in the yellow column of the medical details section of the membership form and any areas of concern on completion of the screening form. If any of the questions in the medical details section have been answered in the red section or questions in stage 1 of the 2019 screening form are answered yes, the instructor is to ask the member whether they have obtained a medical clearance and, if they say yes, the instructor proceeds to the next phase of the induction.

29. The next phase of the induction (which may occur at a subsequent session on a different day) involves demonstrating to the member how to use to cardiovascular, weights and strength equipment and inviting them to use it under the instructor’s supervision.

30. The next phase of the induction involves asking the member if they would like an exercise program prepared for them. The majority answer yes. The instructor then prepares a program on a pro forma program card. The program cards are usually kept at the Fitness Centre in a filing cabinet for access by members and staff. After initially being completed by the instructor, they are then to be completed by the member to show what exercises at what level are completed on occasions when the member attends at the Fitness Centre. Some members record the details in different ways (for example digitally). It is not mandatory for a member to continue to complete the program card.

31. A similar process applies to membership applications by and inductions of applicants for the My Fit Life program. In that case, a medical clearance is always required.

32. The following description applies to members seeking Swim Centre membership (whether stand alone or part of a Full Club membership).

33. As noted above, the membership application form is required to be completed by applicants who intend to undertake lap swimming and/or aqua aerobics. The policy and procedure in relation to the membership form, including the medical details section and medical clearances, is the same as described above in respect of the Fitness Centre.

34. As noted above, applicants for the Swim School or Swim Squads complete part only of the membership form and I infer that it is the name and contact details of the form and not the medical questions. Applicants who complete the membership form undertake a brief induction, in which a swim instructor takes them to the Swim Centre, shows them the pools and introduces Swim Centre staff members to them.

35. There are issues about the extent to which the actual practice at Starplex in respect of membership forms, medical clearances, screening forms and inductions complied with the Starplex policies and procedures. I address this below in the context of the health exemption.

    Other schools

36. Mr Martin in 2019 undertook a desktop survey by a search of the World Wide Web in respect of independent schools in the Australian Capital Territory (ACT), New South Wales (NSW), Queensland (Qld), South Australia (SA) and Victoria (Vic) that have comparable facilities to Starplex on their websites. This produced hits for 53 schools. He prepared a table summarising the results of his survey which was tendered. Webpages in respect of those schools were tendered.

37. Mr Martin between 2019 and 2021 undertook a second desktop survey by a search of the World Wide Web in respect of independent secondary or combined primary and secondary schools in South Australia that have gymnasiums, theatres/halls, pools or courts on their websites. This produced hits for 21 schools (including schools included in his first table). He prepared a table summarising the results of his survey which was tendered. Webpages in respect of those schools were tendered. Mr Martin also visited and viewed Westminster, Prince Alfred College and Faith Lutheran College. Brochures and photographs in respect of those three schools were tendered.

38. The surveys were not targeted at schools who stated on their websites that they provide access to their facilities to the public. The results of the surveys included schools that do not state on their websites that they provide access to their facilities to the public. The majority of the schools surveyed provide access to the public to some of their facilities. The Commissioner contends that the surveys are not representative of schools in general. I address this contention when dealing with the education exemption below.

39. The evidence demonstrates the following in relation to the schools surveyed by Mr Martin.

40. In relation to the use of swimming pools, the following surveyed schools have their own pools and offer swimming and/or swimming programs in their pools to non-students:

    ·Abbotsleigh School (NSW) offers to the public use of its indoor pool at its aquatics centre for a range of swimming and diving programs, aquatics fitness classes, adult squads, lap swimming and intensive holiday swimming;

    ·Cranbrook School (NSW) built an aquatics and fitness centre for use by students and to provide appropriate opportunities for community access;

    ·The Armidale School (TAS) (NSW) has a Sport and Swim Centre, including a 25 metre swimming pool, available to the general public upon becoming members of the TAS Swim Centre;

    ·The King’s School (NSW) offers the public participation in swimming programs at its heated competition pool;

    ·St Andrew’s Anglican College (Qld) offers to members of the community use of its Aquatics Centre when available;

    ·St Hilda’s School (Qld) offers swimming lessons to the public at its 50 metre pool managed by its aquatics office;

    ·The Glennie School (Qld) offers swimming and water safety lessons, swim squad and lap and recreational swimming to swimmers from any other school or club;

    ·Trinity Anglican School (Qld) offers to the public adult fitness programs covering all levels of swimming and fitness;

    ·Prince Alfred College (SA) offers membership of its RED Centre (including use of its two indoor pools) to old scholars and staff (for a fee);

    ·Westminster School (SA) offers learn to swim programs to the public of all ages in its two indoor pools;

    ·Camberwell Grammar School (Vic) offers learn to swim programs and squad programs to the wider community;

    ·Firbank Grammar (Vic) has a swim school offering lessons to the wider community delivered by swim instructors and senior coaches;

    ·Ivanhoe Girls Grammar School (Vic) offers swimming classes, private lessons, adult swimming, aqua aerobics and holiday programs to all members of the community;

    ·Melbourne Girls Grammar School (Vic) offers its learn to swim program to non-Melbourne Grammar students and families.

41. The following surveyed schools have their own pool or pools which are used by external swimming schools and clubs which offer swimming and/or swimming programs to the public:

    ·The Armidale School’s (NSW) pool in its Sport and Swim Centre is used by four external groups, Harwood Swim Centre Armidale, Northern Inland Academy of Sport, Armidale Alligators Swimming Club and University of the Third Age, to conduct swimming classes, elite swimming programs and aerobics sessions;

    ·Coomera Anglican College (Qld) makes its Aquatics Centre available for use by the Rackley Family Swim School which offers to the public swimming lessons and squad training;

    ·West Moreton Anglican College (Qld) makes its pool available for use by the Heath Ramsey Swim Centre, which conducts learn to swim programs and squad and fitness programs;

    ·Immanuel College (SA) makes its indoor pool available for use by iSwim, which conducts swimming classes and squads open to the public;

    ·Prince Alfred College (SA) makes its two indoor pools available for use by Kent Town Swim, which is open to the public;

    ·Trinity Anglican School (TAS) (SA) makes its 25 metre and 50 metre pool at its TAS Aquatics Centre available for use by the TAS Swimming Club, which is open to both students and outside school swimmers;

    ·Ivanhoe Girls Grammar School (Vic) makes its pool available for use by Ivanhoe Aqua Power, which conducts squad programs, and Heidelberg Masters Club, whose members train and compete;

    ·Mentone Grammar (Vic) makes its pool available for use by Bayside Aquatics, which offers swim programs and squads for swimmers from babies to adults.

1. The fact that the swimming programs referred to in the previous paragraph are conducted by entities other than the school in question is disclosed on the websites of the schools in question. The Commissioner raises the question whether the swimming programs referred to at [104] above (in particular at Westminster School) are conducted by the school in question or by a different entity. I infer from the fact that other schools referred to in the previous paragraph disclose that swimming programs are conducted by different entities and the fact that a school which makes available its pool for programs conducted by a different entity may well be misleading the public by failing to disclose that fact, that the swimming programs referred to at [104] above are conducted by the school in question.

2. The following surveyed schools have their own pool or pools which are available for hire by external groups:

   ·Canberra Grammar School (ACT) offers its heated indoor swimming pool for hire;

   ·Abbotsleigh School (NSW) offers to the public hire of its Aquatic Centre;

   ·St Hilda’s School (Qld) offers to the public hire of its 50 metre pool;

   ·The Glennie School (Qld) offers pool hire to any school or club;

   ·The Southport School (Qld) offers its 25 metre and 50 metre pools for bookings;

   ·Prince Alfred College (SA) offers its RED Centre (which includes its pools) for hire by the public when not otherwise in use;

   ·Westminster School (SA) offers its 25 metre pool for hire by external sporting groups or individuals.

3. In relation to the use of fitness centres, the following surveyed schools have their own and offer use or hire of them to the public:

   ·Barker College (NSW) offers to the wider community access to its Sports Centre containing amongst other things gym and exercise spaces;

   ·Cranbrook School (NSW) built a  fitness centre for use by students and to provide appropriate opportunities for community access;

   ·The Armidale School (NSW) has a Sport and Swim Centre, including a weights and gym room, available to the general public for weights sessions, circuit training and weekly classes in fitness boxing by a registered gym instructor;

   ·The King’s School (NSW) offers to the public participation at its gymnasium;

   ·The Glennie School (Qld) offers to the wider community participation in a range of gymnastics programs;

   ·Prince Alfred College (SA) makes available  its RED Centre (including use of its health and fitness studio) for hire by the public when not otherwise in use;

   ·Brighton Grammar School (BGS) (Vic) offers gym memberships and group fitness classes at its BGS Community Gym to parents of students and BGS community members;

   ·Melbourne Girls Grammar School (Vic) offers its Kinder Gym program to non-Melbourne Grammar students and families.

4. The following surveyed school has its own fitness centre which is used by an external organisation which offers fitness programs to the public:

   ·Cornerstone College (SA) makes its fitness centre available for use by EFM Health Club which offers membership (including personal fitness coaching) to the wider community.

5. In relation to the use of courts and sports pitches, the following surveyed schools have their own courts and/or sports pitches and offer use or hire of them to the public:

   ·Canberra Grammar School (ACT) offers its two gymnasiums, tennis courts, basketball courts and six large ovals for hire;

   ·Abbotsleigh School (NSW) offers to the public participation at its sports hall in women’s netball, mixed netball, women’s badminton, men’s badminton, mixed badminton, women’s basketball, men’s basketball and mixed basketball competitive teams;

   ·Abbotsleigh School (NSW) also offers public hire of its sports hall, gymnasium, tennis courts and sports pitch;

   ·Barker College (NSW) offers to the wider community access to its Sports Centre containing amongst other things five court spaces;

   ·New England Girls School at Armidale (NSW) makes available its sporting complex (netball courts, tennis courts, athletics track and rugby field) for training, sporting camps and competitions by the Armidale community;

   ·Tara Anglican School for Girls (NSW) has a gymnasium and netball, basketball and volleyball court available for hire by the wider community;

   ·The Armidale School (NSW) makes available its oval for use by the local community football club and cricket club;

   ·The King’s School (NSW) offers to the public hire of its tennis and basketball courts and rugby, cricket and football grounds;

   ·Cannon Hill Anglican College (Qld) offers for hire to external parties its undercover sporting facility including netball courts;

   ·Coomera Anglican College (Qld) offers to the local community use of its Sports Centre including netball/basketball courts;

   ·St Hilda’s School (Qld) offers to the public hire of its two gymnasiums;

   ·The Southport School (Qld) has its sporting facilities, including tennis courts, basketball courts and playing fields available for bookings;

   ·Cornerstone College (SA) offers its indoor courts, outdoor tennis courts and oval for hire;

   ·Prince Alfred College (SA) makes its courts available for hire by sporting groups when not otherwise in use;

   ·St Peter’s College (SA) offers its sporting grounds for hire to the public under certain circumstances;

   ·St Peter’s Collegiate Girls’ School (SA) offers its indoor courts, outdoor tennis/netball courts and oval for hire;

   ·Unity College (SA) offers its CommUnity Stadium comprising indoor courts for hire by the public;

   ·Walford Anglican School (SA) offers its Sports Centre including indoor courts and dance studio for hire;

   ·Woodcroft College (SA) offers its indoor courts and outdoor courts for hire;

   ·Melbourne Girls Grammar School (Vic) offers designated areas within its sports centre for hire;

   ·St Paul’s Anglican Grammar School (Vic) offers to the public hire of its multipurpose courts and gymnasium courts.

6. In relation to the use of theatres and halls, the following surveyed schools have their own theatres and/or halls and offer hire of them to the public:

   ·Canberra Grammar School (ACT) offers its Performing Arts Centre and school chapel for hire;

   ·Abbotsleigh School (NSW) offers to the public hire of its concert hall, assembly hall and Grace Cossington Smith Gallery;

   ·Moama Anglican Grammar School (NSW) offers its multipurpose hall for hire by community groups;

   ·Newcastle Grammar School (NSW) offers its halls, technology areas and classrooms for hire by community groups;

   ·Penrith Anglican College (NSW) offers its theatre for hire and has hosted professional productions including Cats and James Morrison in concert with a café serving students, parents, staff and visitors;

   ·St Andrew’s Cathedral School (NSW) offers a range of facilities for hire by external hirers;

   ·St Columba Anglican School (NSW) has a Performing Arts Centre, incorporating a theatre, dance studios and conference room, which are available for community engagement and commercial use;

   ·Tara Anglican School for Girls (NSW) has a theatre, lecture theatre and two large halls available for hire by the wider community;

   ·The Armidale School (NSW) has a Creative Arts Centre, including a theatre and drama rooms, available for hire by the general public;

   ·The Armidale School (NSW) offers its chapel for hire;

   ·The King’s School (NSW) offers to the public hire of its two theatres and its large Futter Hall (1,200 seats);

   ·Trinity Anglican School (NSW) offers its Bishop Centre for Performing Arts (comprising a 400 seat theatre with a professional lighting and sound system) for hire by the community;

   ·Cannon Hill Anglican College (Qld) offers for hire to external parties its auditorium, enterprise centre, two chapels (at the discretion of the Chaplain) and recording studio;

   ·Hillbrook School (Qld) offers for hire to external parties its Performing Arts Centre Auditorium (340 seat capacity);

   ·Matthew Flinders Anglican College (Qld) offers use of its Flinders Performance Centre (600 seat capacity) to the wider community;

   ·St Hilda’s School (Qld) offers to the public hire of its conference rooms;

   ·St Margaret’s Anglican Girls’ School (Qld) offers its St Margaret’s Art Centre (150 seat capacity) (catering from its in-house catering department) for hire to community groups and business;

   ·The Southport School (Qld) offers its Dining Room (300 seat capacity) with buffet style food service facilities, and Common Rooms which can be used as private meeting areas, for hire to  the wider community;

   ·Concordia College (SA) offers its Media Studio (television and recording studio) for hire to the public;

   ·Cornerstone College (SA) offers its multipurpose hall (1,400 seats), its performing arts theatre located at the Atelier building (208 seats), Plaza/Amphitheatre, meeting rooms, music practice rooms and commercial kitchens for hire (including optional technician) to the public;

   ·Faith Lutheran College (SA) offers its Barossa Arts Centre performing arts venue (including 965 seat theatre and 120 seat theatre) for hire (with catering) by the public for productions, concerts, exhibitions, conferences and other events;

   ·Immanuel College (SA) offers its theatre, chapel and function centre for hire by the public;

   ·Pedare College (SA) offers its chapel (900 seat capacity) for hire to the public;

   ·Prince Alfred College (SA) offers its ANZAC Hall (875 seat theatre) for hire by the public when not otherwise in use;

   ·Unity College (SA) offers its Performing Arts Centre (with a drama studio) and the Steeple (450 seats) for hire to the public;

   ·St Peter’s Collegiate Girls’ School (SA) offers its Arts Centre performance venue (400 seat theatre) for hire to the public;

   ·Walford Anglican School (SA) offers its Helen Reid Hall (340 seats) and St Elizabeth Chapel (120 seats) for hire (with optional catering);

   ·Westminster School (SA) offers to the public hire of its 806 seat and 165 seat theatres with experienced Westminster event management staff and professional technicians. It also offers a range of facilities for hire with catering for conferences, conventions, seminars, weddings and special events;

   ·Woodcroft College (SA) offers its Mark Porter Hall (350 seats), lecture theatre (100 seats), classrooms, commercial kitchen and home economics kitchens for hire to the public;

   ·Ivanhoe Girls Grammar School (Vic) offers its Performing Arts Centre (500 seat capacity) for hire (including attendance by centre manager and optional attendance by a technician);

   ·St Paul’s Anglican Grammar School (Vic) offers its Science Centre Lecture Theatre, Parker Centre and kitchen for hire.

7. The following surveyed schools offer accommodation (often with meals) to the public in their boarding houses during school holidays:

   ·Abbotsleigh School (NSW) offers its residential facilities (full catering available) during school holidays;

   ·Tara Anglican School for Girls (NSW) offers its residential accommodation for groups who require a central location for training camps, national conferences and competitions;

   ·St Hilda’s School (Qld) offers to the public accommodation (full catering available) during school holidays;

   ·The Southport School (Qld) offers its boarding houses and facilities for group hire during school holidays;

   ·Whitsunday Anglican School (Qld) offers a number of facilities for hire to the general public, including its boarding facilities with on-site meals during school holidays;

   ·Immanuel College (SA) offers to the public its boarding house for camps and live-in conferences during school holiday periods.

   ·Walford Anglican School (SA) offers to the public accommodation (full catering available) in its boarding house during school holidays;

   ·Westminster School (SA) offers to the public competitively priced accommodation (meal packages available) in its boarding house during school holidays;

8. Professor Hoye gave evidence and produced documents concerning community use of school health and sports facilities in Australia.

9. The South Australia Regional Level Recreation and Sports Facilities Planning Guidelines (2016) commissioned by the South Australian Government’s Office for Recreation and Sport, the Local Government Association of South Australia and the Local Government Recreation Forum identifies challenges in providing adequate facilities and recommends a collaborative approach between stakeholders, including schools. It includes the following passages:

   A number of strategic responses to these challenges were recommended:

   …

   PARTNERSHIPS: establish strong partnerships between local government and other levels of government, state bodies and other stakeholders to collectively achieve desired outcomes.

   …

   Other resources developed and produced by the Local Government Recreation Forum include the following …

   ·    Shared Use of School Facilities Policy Guide (2011)

   …

   In adopting collaborative approaches to the planning, provision, development and funding of Regional Level recreation and sport facilities, it is important to clarify the roles and responsibilities of key stakeholders in the process.

   …

   SCHOOLS AND EDUCATION SECTOR

   Schools play a key land owner and provider role and can assist in regional scale projects by acting as a key partner in facility planning, providing access to school land and facilities, acting as core user or anchor tenant of a facility or being the lessee and manager of regional facilities. In all these instances, strong collaboration and partnerships with local government and sporting clubs will be critical to maximising benefit for all users and stakeholders. Greater flexibility in the design and access to school and/or community facilities will lead to greater realisation of shared costs and benefits.

10. The Victorian School Building Authority’s webpage relating to the Victorian Government’s Shared Facilities Fund includes the following passages:

    Shared Facilities Fund

    The 2016-17 Shared Facilities Fund helps to develop community facilities on school sites across Victoria. The funding allocated through this program will deliver funding to schools, councils and other institutions to develop shared facilities arrangements. This funding can be used to implement a range of community infrastructure projects on school sites, including early learning centres, sporting facilities and community hubs.

    …Co-located and shared facilities build a sense of collective purpose between school and community. They facilitate diverse and positive learning experiences, increasing family involvement in children’s schools and improving attendance and achievement of students. They build a sense of community and foster improved connectivity with schools.

    … This program is overseen by the Deputy Premier and the State Treasurer, and administered by the Department of Education and Training.

11. The webpage identifies projects that have been funded, including the construction of courts, theatres, ovals and multiservice community hubs.

12. The State Sport & Recreation Infrastructure Plan 2020-40 produced by the South Australian Government’s Office for Recreation, Sport and Racing includes the following passages:

    8 Complimentary Use of Infrastructure

    Councils and sporting organisations need to maximise infrastructure used to ensure their operating model is sustainable and the money invested results in maximum community benefit….

    …

    Therefore, public and private schools, and tertiary entities need to explore ways to share their facilities with the wider community. Planning for new, upgraded or smart infrastructure must also consider the needs of both sporting and education groups.

    Closing statement

    …

    Sport and recreation infrastructure cannot be delivered by State Government alone. The best and most cost-effective outcomes will be achieved when facilities are considered and delivered with contributions from multiple stakeholders involving collaborative efforts from public and private investment.

13. Professor Hoye said in his first report:

    Multi-faceted health fitness and physical activity facilities such as STARplex are common in municipalities across Australia and are usually owned by either local councils, schools or community groups…

    Facilities similar to STARplex are particularly important in regional communities for the provision of health, fitness, sport and physical activity programs and services. Regional communities are most often serviced by local council owned and operated facilities in the absence of private providers who most often operate in large urban centres to maximise their commercial returns….

    Facilities similar to STARplex are a common occurrence on educational campuses at the secondary level. While there is no database that documents the nature and extent of the occurrence of these facilities, it is common practice for those schools with sport and recreational facilities to open them up for community use outside of school hours…

    Payroll tax

14. In 2007 the Commissioner determined that wages paid by Trinity to school staff were exempt from payroll tax under the Payroll Tax Act 1971 (SA) (the 1971 Act) but not wages paid to staff working at Starplex. This continued when the Act was enacted, replacing the 1971 Act.

15. On 12 April 2017 Trinity’s accountants lodged with the Commissioner an application for an exemption from payroll tax decision in respect of wages paid to Starplex staff.

16. On 5 July 2017 the Commissioner sent a letter to Trinity’s accountants determining that wages paid to the two exercise physiologists and two dietitians were exempt but otherwise refusing the application.

17. On 31 July 2017 Trinity’s accountants lodged with the Minister for Finance an objection against the Commissioner’s decision.

18. On 30 April 2018 the Treasurer sent a letter to Trinity’s accountants disallowing the objection and confirming the Commissioner’s decision.

    Evidence

19. Evidence was given by Mr Martin. His evidence in chief was principally given by affidavits affirmed by him on 30 August 2019 and 22 March 2021.

20. Evidence was given by Mr Wenske. His evidence in chief was principally given by affidavits affirmed by him on 22 March 2021 and 2 March 2023.

21. Evidence was given by Daniel Warland, who was employed by Trinity between August 2011 and November 2021 as a gym instructor and (from 2012) also as a personal trainer at Starplex. His evidence in chief was principally given by affidavits sworn by him on 19 August 2022 and 6 February 2023.

22. Evidence was given by Jonathon Munn, Finance Director employed by Trinity. His evidence in chief was principally given by affidavits affirmed by him on 30 August 2019 and 17 March 2021.

23. There was no challenge to the honesty or general reliability of the evidence of Mr Martin, Mr Wenske, Mr Warland or Mr Munn. Although their recollections were, like any witness, not always perfect and on occasions they corrected their evidence, they were impressive witnesses. Except if and when otherwise stated, I accept their evidence as correct. In order to determine the issues I am required to determine, it is not necessary to summarise their evidence.

24. An affidavit by Kelly Lange, Trinity’s Starplex Swim Centre manager was tendered. She gave evidence about the use of the Swim Centre by other schools and by the Swim School and Swim Squad.

25. An affidavit by Patrick Kerin, Trinity’s solicitor, as a vehicle for tendering brochures obtained and photographs taken by him during visits to Westminster School and Prince Alfred College, was tendered.

1. The third element of the health exemption is that the relevant employee is engaged exclusively in the provision of health services or incidental work.

2. The roles of employees working in the Swim Centre fall into the following categories:

   1swimming or aqua aerobics instructor;

   2swim coach;

   3pool lifeguard or pool plant operator;

   4program coordinator; and

   5manager and assistant manager.

3. As at 2018, there were 41 swimming instructors (three of whom were also aqua aerobics instructors employed by Trinity working in the Swim Centre, 13 of whom also worked as pool lifeguards and eight of whom (including seven of those who also worked as pool lifeguards) also worked as pool plant operators).

4. In respect of the employees who worked exclusively as swimming and/or aqua aerobics instructors and the other employees insofar as they worked as swimming instructors, for the reasons given above I am not satisfied that they are exclusively engaged in the provision of health services (or incidental work).

5. As at 2018, there were 13 pool lifeguards (of whom seven also worked as pool plant operators). The role of a pool lifeguard is to ensure the safety and well-being of users of the Swim Centre. As such, some of their work relates to participants (such as lap swimmers) in the first category and they are therefore engaged in the provision of health services or at least work incidental to the provision of health services. However, a substantial part (probably the majority) of their work relates to participants in the second and third categories and to that extent they are not engaged in the provision of health services or incidental work. As a result, I am not satisfied that they are exclusively engaged in the provision of health services or incidental work.

6. As at 2018, there were nine pool plant operators (of whom eight also worked as pool lifeguards, eight also worked as swimming instructors and one worked as a swim coach). The role of a pool plant operator is essentially to check, clean and maintain pool plant and equipment including maintenance of water quality. As such, some of their work relates to participants (such as lap swimmers) in the first category and they are therefore engaged in work incidental to the provision of health services. However, a substantial part (probably the majority) of their work relates to participants in the second and third categories and to that extent they are not engaged in work incidental to the provision of health services. As a result, I am not satisfied that they are exclusively engaged in work incidental to the provision of health services.

7. As at 2018, there were two swim coaches (one of whom also worked as program coordinator and the other also worked as a pool lifeguard and pool plant operator). The role of a swim coach is to coach Trinity squads or in the Star Squad program. As this relates to the third category, I am not satisfied for the reasons given above that they are exclusively engaged in the provision of health services (or incidental work).

8. As at 2018, there was one program coordinator (who also worked as a coach). The role of program coordinator was not the subject of evidence adduced by Trinity. It appears that the role was either related to squad swimming or to all three categories of activities referred to above. As such, Trinity has not proved that the program coordinator is exclusively engaged in the provision of health services or incidental work.

9. As at 2018, there was one Swim Centre manager and one Swim Centre assistant manager. Their role involved the overall management of the Swim Centre. It related to all three categories of activities referred to above. As such, I am not satisfied that they are exclusively engaged in the provision of health services or incidental work.

   Conclusion

10. Trinity has not established that wages paid to any of the employees in the Swim Centre are exempt under the health exemption.

    Courts Centre

    A health service?

11. The activities in the Courts Centre can be divided into three broad categories:

    1training and competing in basketball, netball, futsal, social badminton and gymnastics;

    2attending Super 6 Basketball Development Clinics, Little Lions Basketball Clinics, Basketball Umpires Clinics and Futsal Coaches Clinics and undertaking a high end training and coaching program for junior athletes at the Starplex Basketball Academy; and

    3undertaking gymnastics programs for five to 13-year-old children, Kindergym programs for two to five-year-old children and Babygym programs for six month to two year old children.

12. In respect of the first category, I find that the predominant purpose of training and competing is for the participant to compete in a competitive sport. While I accept that such participation has a direct and indirect beneficial effect on the health of the participant, that is not the predominant or primary purpose of undertaking the training or competing. The position is essentially the same as in respect of the third category addressed above in relation to the Swim Centre.

13. In respect of the second category, I find that the predominant purpose of attending clinics and coaching programs is for the participant to acquire and enhance basketball, futsal or other sports skills. While I accept that attending those clinics or programs has a beneficial effect on the health of the participant, both directly and indirectly, that is not the predominant or primary purpose of such attendances. The position is essentially the same as in respect of the second category addressed above in relation to the Swim Centre.

14. In respect of the third category, the position is not as clear. It may be that the purposes of attending Babygym and Kindergym in particular include the maintenance and enhancement of health. However, I am not satisfied on the evidence adduced that the predominant or primary purpose of attending is to maintain or advance the good health of the participant.

    Exclusive engagement

15. The third element of the health exemption is that the relevant employee is engaged exclusively in the provision of health services or incidental work.

16. The roles of employees working in the Courts Centre fall into the following categories:

    1instructor and competition facilitator, supervisor or coordinator;

    2Kindergym coordinator; and

    3manager.

17. As at 2018, there was a basketball & competition supervisor, basketball & competition facilitator, netball & competition facilitator, futsal & competition supervisor, inclusive sport & competition facilitator, gymnastics instructor & competition supervisor and gymnastics instructor & coach employed by Trinity working in the Courts Centre.

18. The role of these various employees was to instruct, coordinate and/or supervise netball, basketball, futsal, gymnasium and inclusive sports programs respectively. I am not satisfied for the reasons given above that they are exclusively engaged in the provision of health services (or incidental work).

19. As at 2018, there was one Kindergym coordinator. Their role was to deliver the Kindergym program including assessment and grading of children. I am not satisfied for the reasons given above that they are exclusively engaged in the provision of health services (or incidental work).

20. As at 2018, there was one Courts manager. They had the responsibility for the operational and strategic management of the Courts Centre. I am not satisfied for the reasons given above that they are exclusively engaged in work incidental to the provision of health services.

    Conclusion

21. Trinity has not established that wages paid to any of the employees in the Courts Centre are exempt under the health exemption.

    Theatre

22. Trinity does not contend that wages paid to the employees in the Theatre are exempt under the health exemption.

    StarStore

23. Trinity does not contend that wages paid to employees in the StarStore are exempt under the health exemption.

    Creche

24. The Creche is available to any parent or caregiver visiting Starplex who wishes to leave their child at the Creche during the visit.

25. If the Creche were only available to persons using the Fitness Centre, the service provided by the Creche employees would be incidental to the provision of health services at the Fitness Centre.

26. However, the Creche is also utilised by persons utilising the Swim Centre and the Courts Centre. As the services provided in those areas are not themselves health services, the services provided by the Creche employees are not to that extent incidental to the provision of health services.

27. Trinity has not established that wages paid to the employees in the Creche are exempt under the health exemption.

    Other areas

28. The remaining Trinity employees working at Starplex, as summarised in the table at [25] above, comprise employees working in reception, membership and promotions, and management.

29. All of these employee support functions undertaken at the Fitness Centre, Swim Centre, Courts Centre and Theatre and some also support functions undertaken at the StarStore and Creche As the services provided in those areas, apart from the Fitness Centre, are not themselves health services, the services provided by these employees are not to that extent incidental to the provision of health services.

30. Trinity has not established that wages paid to the remaining employees are exempt under the health exemption. It follows that Trinity has not established that wages paid to the employee who works part-time in the Fitness Centre and part-time in Membership are exempt under the health exemption.

    Conclusion

31. The wages paid to the employees who work in the Fitness Centre, apart from the employee who also works part-time in Membership, are exempt under the health exemption.

32. Trinity has not established that the wages paid to the other employees who work at Starplex are exempt under the health exemption.

    Charitable purpose exemption

33. Trinity contends that wages paid to all Starplex employees are exempt under the charitable purpose exemption.

34. There are six elements to the charitable purpose exemption created by section 48(1)(c). They are:

    1the wages are paid by a non-profit organisation;

    2the organisation has a charitable purpose;

    3the charitable purpose is the organisation’s sole or dominant purpose;

    4the exception in respect of a school or an educational institution, educational company or instrumentality of the State does not apply;

    5the work of the employee for whom the wages are paid is work of a kind ordinarily performed in connection with the purposes of the organisation; and

    6the employee is engaged exclusively in that kind of work.

35. The Commissioner concedes that all elements except the fourth element are established.

    Meaning of the exception

36. The Commissioner contends that the exception to the charitable purpose exemption applies to the organisation (or body) and Trinity is a school within the meaning of that exception.

37. Trinity contends that the exception applies to the endeavour or endeavours carried on by the organisation and, to the extent that its activities are, or an endeavour carried on by it is, not characterised as those of a school under the education exemption, the exception to the charitable purpose exemption does not apply to that extent. This issue is solely one of construction.

38. Starting with the text of the charitable purpose exemption, it applies to:

    a non‑profit organisation having as its sole or dominant purpose a charitable purpose (but not including a school, a college, an educational institution, an educational company or an instrumentality of the State)

39. The text can be divided into two components:

    (a)the exemption (“a non‑profit organisation having as its sole or dominant purpose a charitable purpose”); and

    (b)the exception (“but not including a school, a college, an educational institution, an educational company or an instrumentality of the State”).

40. Textually, the concept in the exemption to which the exception applies is “a non-profit organisation”. This is the natural literal reading of the provision. The only alternative concept to which the exception might theoretically apply is the purpose referred to in the exemption. However, it is not apposite to describe a school or college as a purpose. Further an educational institution (as defined) educational company (as defined) or instrumentality of the State could not be described as a purpose.

41. The noun “organisation” is relevantly defined by the Macquarie Dictionary[104]  to mean:

    6a body of persons organised for some end or work. [105]

    That noun (organization) is relevantly defined by the Oxford English Dictionary[106] to mean:

    1.c.     concr. An organized structure, body or being; an organism.

    2.c.     concr. An organized body, system, or society. … [107]

    [104] Macquarie Dictionary (7^th ed, 2017).

    [105] At page 1059.

    [106] Oxford Dictionary (2^nd ed, 1989).

    [107] At page 923.

42. These definitions indicate that the reference in the exemption to an “organisation” is a reference to the body or entity itself (which will usually be a legal entity but could, for example, be an unincorporated association that is treated as an entity even though it is not strictly a legal entity) rather than to the endeavour undertaken by the entity. Definition 1 in the Oxford English Dictionary is particularly apposite.

43. The literal meaning of the exemption and exception read together is therefore that the reference in the exception to a school or college is a reference to the organisation or entity that conducts the endeavour that amounts to a school or college rather than to the endeavour itself.

44. This meaning is reinforced by the inclusion in the exception of references to an educational institution, an educational company and an instrumentality of the State. An instrumentality of the State is an entity (whether or not strictly a separate legal entity) rather than an endeavour undertaken by the entity. An “educational company” is defined by subsection 48(3) to be a company that, amongst other things, provides promotes or supports the educational services of its controlling educational institution: it is clearly an entity rather than the endeavour it carries on of supporting educational services. An “educational institution” is defined by subsection 48(5) to be an entity that provides education above secondary level: it is clearly an entity rather than the endeavour it carries on of providing post-secondary education.

45. Turning to the context of section 48(1)(c) within subsection 48(1), paragraphs (a) and (b) each refer to an institution rather than an organisation.

46. The noun “institution” is relevantly defined by the Macquarie Dictionary[108]  to mean:

    1an organisation, or establishment instituted for the promotion of a particular object, usually one for some public educational, charitable, or similar purpose.

    …

    3a concern engaged in some activity, as an insurance company. [109]

    [108] Macquarie Dictionary (7^th ed, 2017).

    [109] At page785,

47. The noun “institution” relevantly defined by the Oxford English Dictionary[110] to mean:

    7.An establishment, organization, or association, instituted for the promotion of some object, esp. one of public or general utility, religious, charitable, educational, etc., e.g. a church, school, college, hospital, asylum, dormitory, mission, or the like …[111]

    [110] Oxford Dictionary (2^nd ed, 1989).

    [111] At page 1047.

48. The general meaning of “organisation” and “institution” is such that they are largely synonymous, even if there is not a 100 per cent overlap between the bodies denoted by those terms. It is apparent from subsection 48(1) that in that subsection the terms are used synonymously. The references in paragraphs (a) and (b) of subsection 48(1) to an institution are apparently to an entity (whether to a legal entity or a quasi-legal entity) as opposed to the endeavour(s) carried on by an entity. This suggests that the reference in paragraph (c) to an organisation are also to an entity as opposed to the endeavour(s) carried on by an entity.

49. Turning to the context of subsection 48(1) within section 48, section 48(2)(a) refers to the “purposes of the institution or body”. The legislature uses the term “body” in subsection (2) to refer to the “organisation” referred to in subsection (1), This reinforces that an organisation is a body.

50. The reference in section 48(2)(a) to the purposes of the institution or body indicates that the reference to a school or college in the exception contained in section 48(1)(c) is to the organisation rather than its purposes because section 48(2)(a) refers to those two concepts as separate.

51. Turning to the context of section 48 in the Act as a whole, the word “organisation” is not otherwise used in the Act other than when referring to section 48[112] or when coupled with a specific type of organisation. There are three cases of the latter type of reference:

    ·section 55 refers to a “SACFS organisation”[113] (in exempting wages paid to volunteer firefighters);

    ·section 56 refers to a “emergency services organisation”[114] (in exempting wages paid to emergency services volunteers); and

    ·clause 15 of Schedule 2 refers to an “eligible organisation”[115] (in exempting wages paid by a child care centre).

    In each case, the reference is to an entity as opposed to the endeavour or endeavours carried on by it.

    [112] Subsection 52(2).

    [113] As defined in the Fire and Emergency Services Act 2005 (SA)

    [114] As defined in the Fire and Emergency Services Act 2005 (SA).

    [115] As defined in the Child Care Act 1972 (Cth).

52. Clause 10 of Schedule 2 refers to wages paid by a “school or college”. For the reasons given above, in clause 10 the school or college is necessarily a different concept to the body which carries it on because paragraph (a) refers to the school or college being carried on by a body corporate, society or association.

53. On the one hand, this suggests that, if the legislature had intended to make in section 48(1)(c) the distinction made in clause 10, it would have done so in a manner similar to that done in clause 10 or at least in some other manner.

54. On the other hand, for the reasons given at [636] and following below, it might be thought that the exception to the exemption in section 48(1)(c) would logically operate in harmony with the exemption provided by clause 10.

55. Turning to the legislative history in respect of section 48(1)(c), a provision in similar terms was inserted into the 1971 Act by an amending act in 2008.[116] That legislation contained some differences in structure[117] and in the scope of the exemption,[118] but these are not directly relevant to the exception. The exception was expressed in words to the same effect as in section 48(1)(c) of the Act, namely:

    but not so as to include under this paragraph an organisation that is a school, a college, an educational institution, an educational company or an instrumentality of the State;

    [116] The Pay-Roll Tax (Harmonisation Project) Amendment Act 2008 (SA).

    [117] What is now contained in section 48(1)(c) and paragraphs (a) and (b) of subsection 48(2) was combined in a single paragraph.

    [118] It referred to “objects” rather than “purpose”, and objects being “wholly” charitable rather than the purpose being “sole or dominant”.

56. The exception expressed in the 1971 Act clearly referred to the organisation as an entity rather than an endeavour carried on by the entity.

57. Turning to the evident purpose of the exception to the exemption in section 48(1)(c), one potential evident purpose that theoretically might be identified is that wages paid by a school or college or an educational institution, educational company or instrumentality of the State were and are already exempt under other provisions of the legislation. However, wages paid by an educational institution, educational company or instrumentality of the State are not exempted (other than wages paid by a university college affiliated with the University of Adelaide or the Flinders University of South Australia). Further, the exemption in respect of wages paid by a school or college was and is expressed by reference to the endeavour carried on rather than the body that carries it on. This potential evident purpose can therefore be eliminated.

1. Another potential evident purpose that theoretically might be identified is that wages paid by a school or college or an educational institution, educational company or instrumentality of the State should not, as a matter of policy, be exempt from payroll tax. However, wages paid by a school or college were and are exempt from payroll tax (now under section 49 of the Act and clause 10 of Schedule 2). This potential evident purpose can therefore be eliminated.

2. Another potential evident purpose is that the exemption of wages paid by a school or college effected by clause 10 of Schedule 2 contains limitations on the eligibility of wages paid by a school or college and the exception to the exemption in section 48(1)(c) was inserted to prevent those limitations being circumvented by claiming exemption under section 48(1)(c) rather than under clause 10. If this is the evident purpose, logically the exception to the exemption under section 48(1)(c) would apply to the endeavour carried out by the entity rather than the entity itself because clause 10 applies to the endeavour as opposed to the entity and the two provisions may be expected to be intended to operate in a complementary manner.

3. There is no evident purpose that supports the construction advanced by the Commissioner.

4. The second reading speech insofar as it referred to the charitable purpose exception introduced in 2008 into the 1971 Act does not mention the exception and therefore does not assist in relation to the construction issue.

5. Returning to the existence and content of clause 10 of Schedule 2 by way of context for the construction of the exception to the exemption in section 48(1)(c), there is a general principle of statutory construction that, when the legislature uses a term in different provisions of the legislation, it intends to use that term with the same meaning in both provisions.[119] The force of that principle varies depending on the term in question and the context.

   [119] Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1 at 10 per Gibbs CJ.

6. In the present case, that principle has significant force because it may be expected that the exemption in respect of schools or colleges in clause 10 of Schedule 2 operates in a complementary fashion with the exception to the exemption in section 48(1)(c), such that the reference to school or college in section 48(1)(c), is a reference, like the reference to school or college in clause 10, to the endeavour rather than the entity.

7. However, despite the force of this consideration and of the consideration in relation to evident purpose addressed above, the text of section 48 is intractable. It only admits of a construction that the reference to a school or college is, like the references to an educational institution, educational company and State instrumentality, a reference to the entity rather than to the endeavour carried on by the entity.

8. The parties do not cite any case that has considered the meaning of the exception in section 48(1)(c) of the uniform payroll tax legislation or its predecessors in South Australia or elsewhere. However, the parties do cite The National Institute of Dramatic Art v Chief Commissioner of State Revenue,[120] in which tangential consideration was given to a related provision that appears as clause 12(1)(c) of Schedule 2 to the NSW Act, which (as observed above) does not appear in the Act. The context in which the issue of construction arose in that case and the issue of construction itself are summarised at [271] and following above.

   [120] [2016] NSWSC 1471; (2016) 103 ATR 856.

9. Clause 12(1)(c) of Schedule 2 to the NSW Act creates an exemption in respect of wages paid by “a non-profit organisation (other than a school or college, statutory body or instrumentality of the State)” having a charitable purpose provided that defined conditions were met. The words in parentheses are similar to the words in the exception to the exemption in section 48(1)(c), but also include a statutory body and do not include an educational institution or company. The reference to a non-profit organisation is the same.

10. White J contrasted the structure of clause 12(1)(c) with that of clause 4. White J said:

    Both parties relied on cl 4 of Sch 2 to advance a contention in relation to the meaning of cl 12(1)(c). …

    The Chief Commissioner emphasised that cl 4 refers to a school or college that is carried on by a specified body (cl 4(b)). That is to say, the reference in cl 4 to a school or college is a reference to the conduct of a school or college by one of the specified bodies in cl 4(b). He submitted that “school or college” should be given a consistent construction in cl 4 and cl 12, so that in cl 12(1)(c) the exclusion of the exemption applies to the activities of the non-profit organisation in conducting a school or college, even if that activity were not the main activity or purpose of the organisation which would not itself be characterised as a school or college.

    …

    The difficulty with this submission is that cl 12(1)(c), unlike cl 4, prescribes the exemption by reference to the identity or character of the non-profit organisation rather than by what activity the organisation carries on. Of course the activity the organisation carries on will be relevant to its proper characterisation, but the concepts are discrete. The contention advanced by the Chief Commissioner could only be adopted if cl 12(1)(c) could be read as if it provided, in substance, that wages were exempt if they were paid or payable by a non-profit organisation (other than in its conduct of a school or college, or a statutory body or an instrumentality of the State). …[121]

    [121] At [21]-[22], [24].

11. Interestingly, the New South Wales Commissioner advanced a construction of clause 12(1)(c) which is diametrically opposite to the construction of section 48(1)(c) advanced by the South Australian Commissioner before me. The construction of clause 12(1)(c) adopted by White J supports the construction of section 48(1)(c) advanced by the Commissioner before me and the construction I have derived by reference to the text, context and evident purpose of the provision.

12. The exception to the exemption in section 48(1)(c) applies to Trinity as an entity and it is therefore not eligible for exemption under section 48(1)(c).

13. Given that the evident purpose of the provision and the context of the structure of clause 10 of Schedule 2 referred to above, it is desirable that the legislature give consideration to the wording of the exception and whether it should be amended to refer to the endeavour rather than the entity.

    Application of the exception

14. Trinity does not contend that, if the construction of section 48(1)(c) which it advances is rejected, Trinity as an institution should not be characterised as a school or college.

15. In any event, on the evidence adduced, there is no doubt that, if as I have concluded Trinity must be characterised as an institution, it is correctly characterised as a school or college.

16. Neither party contends that Trinity undertakes a separate and independent endeavour to its school endeavour. In any event, clearly Trinity’s predominant endeavour is a school.

    Conclusion

17. The wages paid to the employees who work at Starplex, or indeed any employees of Trinity, are not exempt under the charitable purpose exemption.

    Conclusion

18. The wages paid to the employees who work in the Theatre, Courts Centre, Swim Centre and Fitness Centre, apart from the two employees who also work part-time in Membership, are exempt under the education exemption. Trinity has not established that the wages paid to the other employees who work at Starplex are exempt under the education exemption.

19. The wages paid to the employees who work in the Fitness Centre, apart from the employee who also works part-time in Membership, would be exempt under the health exemption to the extent that they are not exempt under the education exemption. Trinity has not established that the wages paid to the other employees who work at Starplex are exempt under the health exemption.

20. The wages paid to the employees who work at Starplex are not exempt under the charitable purpose exemption.

21. The appeal must be allowed. I will hear the parties concerning the orders to be made to dispose of the appeal. I will also hear the parties concerning costs.