Waubra Foundation and Commissioner of Australian Charities and Not-for-profits Commission
[2017] AATA 2424
•4 December 2017
Waubra Foundation and Commissioner of Australian Charities and Not-for-profits Commission [2017] AATA 2424 (4 December 2017)
Division:TAXATION & COMMERCIAL DIVISION
File Number: 2015/4289
Re:Waubra Foundation
APPLICANT
AndCommissioner of Australian Charities and Not-for-profits Commission
RESPONDENT
Decision
Tribunal:The Honourable Justice White, Deputy President
Deputy President K BeanDate:4 December 2017
Place:Adelaide
The decision under review is affirmed.
.................[Sgd].................................................
The Honourable Justice White
Catchwords
CHARITIES – Revocation of registration as a charity – Whether Tribunal should determine what was the correct or preferable decision when the Assistant Commissioner made his decision or whether Tribunal should determine the correct or preferable decision as at the time of its own decision – Whether applicant is an institution whose principal activity is to promote the prevention or the control of diseases in human beings – Whether there is evidence that wind farm emissions cause or are associated with diseases – Whether there is a plausible basis for thinking that wind farm emissions could lead to disease – Whether applicant is an entity which has a purpose of promoting or protecting human rights – Whether applicant has a purpose of promoting or protecting the Right to Health – Decision under review affirmed.
Legislation
Australian Charities and Not-for-profits Commission Act 2012 (Cth), ss 25-5, 30‑10, 30-20, 35‑5, 35‑10, 35‑15, 35‑20, 155‑5, 160‑5, 160-15, 160-25, 165-40, 190‑10, 300‑5; divs 25, 30, 165
Australian Charities and Not-for-profits Commission (Consequential and Transitional) Act 2012 (Cth), sch 1, pt 1, cl 7; sch 2, pt 1, cl 3
Charities Act 2013, ss 5, 12
Charities (Consequential Amendments and Transitional Provisions) Act 2013 (Cth)
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s 3
Income Tax Assessment Act 1997, ss 30-20, 30‑125, 995-1; sub-div 30-B, Item 1.1.6
Taxation Administration Act 1953 (Cth), ss 14ZZK, 426-55, sch 1
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Administrative Appeals Tribunal Act 1975, ss 33(1)(c), 43(1)
Income Tax Assessment Act 1915 (Cth), s 18(h)
Taxation Laws Amendment Act (No 2) 2001 (Cth)Evidence Act 1995 (Cth), ss 76‑79
Cases
Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Commissioner of Taxation v Cancer and Bowel Research Association Inc (as trustee for the Cancer and Bowel Research Trust) [2013] FCAFC 140; (2013) 305 ALR 534
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693
Stratton v Simpson (1970) 125 CLR 138
Vancouver Society of Immigrant and Visible Minority Women v Minister for National Revenue [1999] 1 SCR 10
Chesterman v The Federal Commissioner of Taxation (1923) 32 CLR 362
Chesterman v The Federal Commissioner of Taxation (1925) 37 CLR 317
The Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531
Perpetual Trustee Company Ltd v The Federal Commissioner of Taxation (1931) 45 CLR 224
Victorian Women Lawyers’ Association v Federal Commissioner of Taxation [2008] FCA 983; (2008) 170 FCR 318
Commissioner of Taxation v Word Investments Ltd [2008] HCA 55; (2008) 236 CLR 204
Royal Choral Society v Commissioners of Inland Revenue [1943] 2 All ER 101
Brookton Co-operative Society Limited v Federal Commissioner of Taxation (1981) 147 CLR 441
Maunsell v Olins [1975] AC 373
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Healthy Cities Illawarra Inc and Commissioner of Taxation [2006] AATA 552; 63 ATR 1165
Law Institute of Victoria v Commissioner of State Revenue [2015] VSC 604
Comcare v Mooi (1996) 69 FCR 439
Prain v Comcare [2017] FCAFC 143
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
Metroll Victoria Pty Ltd v Wyndham CC [2007] VCAT 748
R v Bonython (1984) 38 SASR 45HEARING DATES
5-8, 12-16, 19, 21 and 22 September 2016
Secondary Materials
Explanatory Memorandum – Taxation Laws Amendment Bill (No 2) 2001
Pearce, DC and Geddes, RS Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014)
Macquarie Dictionary, 6th ed., 2015 Macmillan Publishers Group Australia
Committee on Economic Social and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health (Art.12), 22nd sess, UN Doc E/C.12/2000/4
REASONS FOR DECISION
The Honourable Justice White
Deputy President K Bean4 December 2017
INTRODUCTION [1]
THE APPLICANT [6]
HISTORY OF THE APPLICANT’S REGISTRATION [11]
THE REQUIREMENTS FOR REGISTRATION [24]
REVOCATION OF REGISTRATION [27]
THE DECISION OF THE ASSISTANT COMMISSIONER [32]
THE OBJECTION DECISION [39]
THE PRESENT APPLICATION FOR REVIEW [42]
THE MATERIAL TIME FOR CONSIDERATION [56]
ITEM 13: HEALTH PROMOTION CHARITY – GENERAL [92]
Institution [93]
Activity and purpose[94]
Disease[109]
To promote the prevention or control [121]
THE APPLICANT’S ACTIVITIES [144]
The applicant’s contention as to its principal activity [144]
Overview of submissions [146]
The applicant’s Constitutions [152]
Evidence of Sarah Laurie [156]
The establishment of the Waubra Foundation [173]
The evidence of the applicant’s finances [179]
Other lay witness evidence [189]
The evidence of the expert witnesses concerning the applicant [215]
Inferences from documents [232]
Findings concerning the applicant’s activities [233]
THE SCIENTIFIC AND MEDICAL EVIDENCE [245]
Concepts and Nomenclature [248]
“Sound” and “noise” [248]
Measurement of sound [250]
Sound perception and distance [253]
Relevant studies, articles and other publications [257]
The Systematic Review[259]
The Health Canada study [270]
Health Canada 2015 Paper [283]
Further references to the Health Canada study [289]
Medical recognition of adverse health effects from wind farms [293]
Other relevant articles and publications [296]THE EXPERT EVIDENCE [311]
The applicant’s expert evidence – general [311]
The Commissioner’s expert evidence – general [349]
Dr McBride and Professor Wittert[357]
Dr Bruce Rapley and Dr Robert Thorne [379]
Professor Mariana Alves-Pereira [398]
Mr William Huson and Mr Steven Cooper [405]
Mr Christopher Turnbull [452]SUMMARY OF THE EFFECT OF THE MEDICAL AND SCIENTIFIC EVIDENCE [467]
ITEM 13: PRINCIPAL ACTIVITY OF PROMOTING THE PREVETION OR
CONTROL OF DISEASE [471]
ITEM 7: PROMOTING OR PROTECTING HUMAN RIGHTS [501]
The applicant’s Constitution [506]
The claim before the Assistant Commissioner and the Commissioner [509]
The claim concerning human rights in the Tribunal [513]
Consideration [522]
SUMMARY [538]
DECISION [539]INTRODUCTION
Under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (the ACNC Act), entities may be registered as a charity of a specified subtype or of specified subtypes if they satisfy certain criteria. In some cases, the subtype in which a charity is registered determines whether donations to the charity are deductible for tax purposes from the assessable income of the donors.
In circumstances to be explained shortly, the applicant was, until December 2014, registered as a charity under four of the subtypes listed in s 25‑5 of the ACNC Act, namely, as an:
Item 1Entity with a purpose to which paragraph (a) of the definition of charitable purpose in subsection 12(1) of the Charities Act 2013 applies (advancing health);
Item 7Entity with a purpose to which paragraph (g) of the definition of charitable purpose in subsection 12(1) of the Charities Act 2013 applies (promoting or protecting human rights);
Item 12Entity with a purpose to which paragraph (1) of the definition of charitable purpose in subsection 12(1) of the Charities Act 2013 applies (advancing public debate); and
Item 13Institution whose principal activity is to promote the prevention or the control of diseases in human beings.
On 11 December 2014, an Assistant Commissioner of the Australian Charities and Not-for-profits Commission (the ACNC) determined that the applicant’s registration as a charity of subtypes 7 and 13 should be revoked. The Assistant Commissioner also determined that an alternative claim by the applicant to be registered as a charity with the purpose of advancing education should not be accepted. The effect of these determinations was that the applicant remained registered as a charity in two subtypes only, namely, advancing health and advancing public debate (Items 1 and 12).
Subsequently, by a decision made on 23 June 2015 (wrongly shown as 23 June 2014), the respondent, the Commissioner of the ACNC (the Commissioner), disallowed an objection by the applicant to those aspects of the Assistant Commissioner’s decision which concerned the revocation of its registration as a charity in subtypes 7 and 13 (the Objection Decision). The applicant had not objected to the Assistant Commissioner’s decision with respect to the subtype of advancing education.
In these proceedings, the applicant seeks review of the Commissioner’s Objection Decision. In our opinion, the application fails and the Objection Decision should be affirmed. Our reasons follow.
The Applicant
The applicant was established in March 2010. It is said to have been established initially as an association but, at the times material to these proceedings, it has been a company limited by guarantee.[1] It is a not‑for‑profit entity.[2]
[1] Exhibit A4, T‑documents, T3/122, at [20].
[2] Statement of Agreed Facts (SOAF), at [1]-[3].
At least in the past, a significant focus of the applicant’s activities has been on the adverse health effects which it attributes to wind turbines in wind farms.
The applicant’s objects, as stated in its Constitution, have changed significantly since 2011. At the time of the Objection Decision, the statement of the applicant’s objects was: “To promote human health and wellbeing through the prevention and control of diseases and other adverse health effects due to industrial sound and vibration”.
This was the statement in the applicant’s constitution from 24 January 2015 until 26 April 2016. On that date, the statement of the applicant’s objects changed to include an additional object: “To promote and protect human rights where those human rights are, or may be, adversely affected because of industrial sound and vibration”.
Both the applicant and the Commissioner attached some significance to the changes in the applicant’s statement of objects since its establishment in 2010 and it will be necessary to return to that history. It will also be necessary to consider whether it is open to the Tribunal to have regard to all aspects of that history.
History of the Applicant’s registration
With effect from 1 October 2010 (that is, shortly after its establishment), the applicant was endorsed by the Commissioner of Taxation as a “deductible gift recipient” (DGR) under Item 1.1.6 of Sub‑div 30-B of the Income Tax Assessment Act 1997 (Cth) (the ITA Act) on the basis that it was “a charitable institution whose principal activity is to promote the prevention or the control of diseases in human beings”. The Tax Commissioner’s endorsement had the effect of making donations to the applicant tax deductible gifts. The evidence before the Tribunal did not indicate the basis upon which the Commissioner of Taxation had issued the endorsement.
The ACNC Act came into operation on 3 December 2012. It established the ACNC, established the office of the Commissioner, provided for the registration by the ACNC of not-for-profit entities satisfying certain criteria, and provided in several respects for their regulation and monitoring. The ACNC Act provided in s 25‑5(5) for seven subtypes of charities.
By the operation of the Australian Charities and Not-for-profits Commission (Consequential and Transitional) Act 2012 (Cth) (the ACNC Transitional Act) and by virtue of its previous endorsement by the Commissioner of Taxation, the applicant was, on the commencement of the ACNC Act, taken to be registered as a charity of two subtypes under s 25‑5(5) of the ACNC Act, namely:
Item 4 Entity with another purpose that is beneficial to the community; and
Item 5Institution whose principal activity is to promote the prevention or the control of diseases in human beings.
On 1 January 2014, the Charities Act 2013 (Cth) (the Charities Act) came into operation. Section 5 contains definitions of “charitable” and “charity” as follows:
Definition of charity
In any Act:
charitable: an entity is charitable if the entity is a charity.
Example:A reference in an Act to a charitable trust is a reference to a trust that is a charity.
charity means an entity:
(a)that is a not-for-profit entity; and
(b)all of the purposes of which are:
(i)charitable purposes (see Part 3) that are for the public benefit (see Division 2 of this Part); or
(ii)purposes that are incidental or ancillary to, and in furtherance or in aid of, purposes of the entity covered by subparagraph (i); and
…
(c)none of the purposes of which are disqualifying purposes (see Division 3); and
(d)that is not an individual, a political party or a government entity.
Section 12 of the Charities Act defines the term “charitable purpose” appearing in the definition of “charity” and indicates that there may be 12 different types of charitable purpose:
Definition of charitable purpose
(1) In any Act:
charitable purpose means any of the following:
(a) the purpose of advancing health;
(b) the purpose of advancing education;
(c) the purpose of advancing social or public welfare;
(d) the purpose of advancing religion;
(e) the purpose of advancing culture;
(f)the purpose of promoting reconciliation, mutual respect and tolerance between groups of individuals that are in Australia;
(g)the purpose of promoting or protecting human rights;
(h)the purpose of advancing the security or safety of Australia or the Australian public;
(i)the purpose of preventing or relieving the suffering of animals;
(j)the purpose of advancing the natural environment;
(k)any other purpose beneficial to the general public that may reasonably be regarded as analogous to, or within the spirit of, any of the purposes mentioned in paragraphs (a) to (j);
…
(l)the purpose of promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country, if:
(i) in the case of promoting a change—the change is in furtherance or in aid of one or more of the purposes mentioned in paragraphs (a) to (k); or
(ii) in the case of opposing a change—the change is in opposition to, or in hindrance of, one or more of the purposes mentioned in those paragraphs.
(2)Paragraph (l) of the definition of charitable purpose in subsection (1) is the only paragraph of that definition that can apply to the purpose of promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country.
(3)For the purposes of this section, it does not matter whether a purpose is directed to something in Australia or overseas.
Certain provisions of the Charities (Consequential Amendments and Transitional Provisions) Act 2013 (Cth) (the Charities Transitional Act) also came into operation on 1 January 2014. Amongst other things, sch 1, pt 1, cl 7 of that Act repealed s 25‑5(5) of the ACNC Act and replaced it with a new s 25‑5(5). The new s 25‑5(5) provided for 14 (instead of the previous seven) subtypes of charities.
Schedule 2, pt 2, clauses 2 and 3 of the Charities Transitional Act provided for two kinds of transition, one in relation to “old subtypes” which were “equivalent” to subtypes in the new s 25‑5(5), and one in relation to “old subtypes” which were “possibly equivalent” to subtypes in the new s 25‑5(5).
The applicant’s registration under the old subtype 5 was equivalent to the new subtype 13, as each was expressed in identical terms, namely, “[i]nstitution whose principal activity is to promote the prevention or the control of diseases in human beings”.
The transitional position with respect to registration under the old subtype 4 was a little more complex. Schedule 2, pt 2, cl 3(3) contemplated that an entity previously registered as subtype 4 in the old s 25‑5(5) may be “possibly equivalent” to 10 different subtypes in the new s 25‑5(5). Clause 3(1) allowed an entity which had been registered as a subtype 4 charity to notify the Commissioner that it met the description of one or more of these 10 subtypes and, in the event that it gave such a notification, provided that the Commissioner was to treat the entity as registered under the nominated subtype or subtypes.
By a letter dated 18 February 2014, the applicant notified the ACNC that it considered itself entitled to be registered under four of the subtypes in the new s 25‑5(5), namely, Items 1, 2, 7 and 12.[3] The inclusion of Item 2 was misconceived as it was not one of the subtypes which the transitional provisions recognised as being “possibly equivalent” to subtype 4.
[3] Exhibit A4, T20.
Accordingly, by virtue of the transitional provisions and its notice of 18 February 2014, the applicant became registered with effect from 1 January 2014 as a charity of the following subtypes:
Item 1Entity with a purpose to which paragraph (a) of the definition of charitable purpose in subsection 12(1) of the Charities Act 2013 applies (advancing health);
Item 7Entity with a purpose to which paragraph (g) of the definition of charitable purpose in subsection 12(1) of the Charities Act 2013 applies (promoting or protecting human rights);
Item 12Entity with a purpose to which paragraph (l) of the definition of charitable purpose in subsection 12(1) of the Charities Act 2013 applies (advancing public debate); and
Item 13Institution whose principal activity is to promote the prevention or the control of diseases in human beings.
The applicant’s registration as an Item 13 subtype charity (sometimes referred to as a “health promotion charity”) was important to it because it meant that it then satisfied the definition of “registered health promotion charity” in s 995‑1 of the ITA Act. Section 30‑20 of the ITA Act has the effect that donations to a registered health promotion charity are tax deductible in the hands of the donor.
The applicant’s registration as a charity in the subtype “protection of human rights” did not have any effect on the tax deductibility of donations, but did mean that the applicant was entitled to certain tax concessions.
The requirements for registration
The entitlement of an entity to registration as a charity is contained in s 25‑5 of the ACNC Act. Section 25‑5 provides (relevantly):
(1) An entity is entitled to registration as a type of entity if:
(a) it meets the conditions in subsection (3); and
(b)it meets the description of that type of entity in column 1 of the table in subsection (5); and
(c)if the entity has previously been a registered entity, but its registration as a type of entity has been revoked—the Commissioner is satisfied that the matters which led to the revocation have been dealt with such that the registration of the entity would not conflict with the objects of this Act.
Note: Registration of an entity mentioned in paragraph (c) has effect from the time of registration (see section 30‑30). It does not rescind the revocation of the previous registration.
(2) An entity is entitled to registration as a subtype of entity if:
(a) it meets the conditions in subsection (3); and
(b)it meets the description of that subtype of entity in column 2 of the table in subsection (5); and
(c)it is entitled to registration as the type of entity that corresponds to that subtype of entity (as set out in that table); and
(d)it is registered as that type of entity.
(3)The conditions are as follows:
(a) the entity is a not-for-profit entity;
(b)the entity is in compliance with the governance standards and external conduct standards (see Part 3-1);
(c)the entity has an ABN;
(d)the entity is not covered by a decision in writing made by an Australian government agency (including a judicial officer) under an Australian law that provides for entities to be characterised on the basis of them engaging in, or supporting, terrorist or other criminal activities.
(4)To avoid doubt, an entity may be entitled to registration as more than one subtype of entity.
Note:An entity could be registered as an entity with a purpose of advancing social or public welfare, and also be registered as a public benevolent institution.
Division 30 of the ACNC Act provides for the process of registration of an entity, both as a type and as a subtype of entity. The process commences with an application to the Commissioner, using an approved form (s 30‑10). Subject to some matters which are presently immaterial, the Commissioner is obliged to register an applicant which is entitled to registration under div 25 (s 30‑20).
It was common ground that the applicant satisfied the criteria contained in s 25‑5(1) and (3). The issue in the ACNC was whether the applicant satisfied s 25‑5(2)(b), namely, that it met the description of the subtypes of entities in the table in subs (5) which it claimed, in particular, whether its purposes included the purpose of promoting or protecting human rights and whether its principal activity was to promote the prevention or the control of diseases in human beings.
Revocation of registration
Section 35‑10 of the ACNC Act is the source of the Commissioner’s power to revoke the registration of a charity. The power may be exercised with respect to both the type and subtype of registration (s 35‑5). Section 35‑10 provides:
35‑10 Revoking registration
(1)The Commissioner may revoke the registration of a registered entity if the Commissioner reasonably believes that any of the following conditions are met:
(a)at any time after the date of effect of the registration, the entity is or was not entitled to registration;
(b)the registered entity provided, in connection with its application for registration, information that was false or misleading in a material particular;
(c)at any time after the date of effect of the registration:
(i) the registered entity has contravened a provision of this Act, or it is more likely than not that the registered entity will contravene a provision of this Act; or
(ii) the registered entity has not complied with a governance standard or external conduct standard, or it is more likely than not that the registered entity will not comply with such a standard;
(d) the registered entity has:
(i) a trustee in bankruptcy; or
(ii) a liquidator; or
(iii) a person appointed, or authorised, under an Australian law to manage the affairs of the entity because it is unable to pay all its debts as and when they become due and payable;
(e)the registered entity has made a request to the Commissioner, in the approved form, that the Commissioner revoke the registration.
(2)In deciding whether to revoke the registration of an entity the Commissioner must take account of the following matters:
(a)the nature, significance and persistence of any contravention of this Act or non‑compliance with a governance standard or external conduct standard (or any such contravention or non‑compliance that is more likely than not) by the registered entity;
(b)what action the Commissioner, the registered entity, or any of the responsible entities of the registered entity, could take or have taken:
(i)to address any such contravention or non‑compliance (or prevent any such contravention or non‑compliance that is more likely than not); or
(ii) to prevent any similar contravention or non‑compliance;
(c)the desirability of ensuring that contributions (see section 205‑40) to the registered entity are applied consistently with the not‑for‑profit nature, and the purpose, of the registered entity;
(d) the objects of any Commonwealth laws that refer to registration under this Act;
(e)the extent (if any) to which the registered entity is conducting its affairs in a way that may cause harm to, or jeopardise, the public trust and confidence in the not‑for‑profit sector mentioned in subsection 15‑5(1) (Objects of this Act);
(f)the welfare of members of the community (if any) that receive direct benefits from the registered entity;
(g) any other matter that the Commissioner considers relevant.
(3)The revocation must specify the day on which the entity’s registration is taken to be revoked. The specified day must be:
(a)if the reason for the revocation is that the entity is not entitled to registration:
(i) the day on which the entity first ceased to be entitled; or
(ii) a later day; or
(b)if the reason for the revocation is that the entity provided, in connection with its application for registration, information that was false or misleading in a material particular:
(i) the day on which the registration took effect; or
(ii) a later day; or
(c) otherwise:
(i) the day on which the revocation is made; or
(ii) a later day.
(4) …
As can be seen, the discretion of the Commissioner to revoke the registration of an entity is enlivened upon the Commissioner forming a reasonable belief of one or more of five matters, being disentitlement to registration (sub‑s (1)(a)), the entity’s provision of false or misleading information (sub‑s (1)(b)), relevant contraventions (sub‑s (1)(c)), insolvency (sub‑s (1)(d)), or a request by the entity (sub‑s (1)(e)). By s 35‑10(3), the Commissioner must in the revocation specify the day on which the entity’s registration is taken to be revoked. In two cases (lack of entitlement to registration and the provision of false or misleading information), the date on which the revocations takes effect may be a date antecedent to the date of the revocation decision.
We note these matters concerning the power of revocation in s 35‑10. First, the exercise of the power is contingent on the Commissioner forming a reasonable belief that at least one of the defined circumstances exists. Secondly, the exercise of the power is discretionary. The Commissioner is not compelled to revoke the registration of an entity upon forming the belief.
Thirdly, the power vested in the Commissioner is one of revocation of registration. It is not a power to suspend the registration or to allow it to continue subject to compliance with specified conditions. There is no indication that the Commissioner may revoke the registration for a specified period. Once an entity’s registration has been revoked, that entity may become re‑registered only by going through the process set out in div 30 of the ACNC Act. This is confirmed by s 25‑5(1)(c), including the note to that subparagraph.
The fourth matter concerns s 35‑10(1)(a), being the provision relied upon by the Assistant Commissioner and the Commissioner in the applicant’s case. That subparagraph empowers the Commissioner to revoke the registration of an entity if the Commissioner believes, reasonably, that the entity is not (at the time of the Commissioner’s consideration) entitled to registration or was not, at any time after the date of effect of the registration, entitled to that registration. That is to say, the Commissioner may revoke a registration even if a disentitling factor which existed in the past is no longer operative. No doubt, the Commissioner may consider whether the discretion should be exercised in favour of revocation if the disentitling factor existed for a short time only, but it seems that the discretion is enlivened by a lack of entitlement to registration which existed at some time in the past (but after the date of effect of the registration) even if the entity has again become entitled to registration.
The decision of the Assistant Commissioner
As just noted, s 35‑10 of the ACNC Act empowers the Commissioner to revoke the registration of a registered entity if the Commissioner reasonably believes, amongst other things, that at any time after the date of effect of the registration, the entity is not, or was not, entitled to registration. Subject to a qualification which is presently immaterial, the Commissioner must, before revoking a registration, give a show cause notice to the registered entity (s 35‑15).
The ACNC gave the applicant show cause notices with respect to its registration in subtypes 7 and 13.[4] The task of determining whether or not the applicant’s registration in those subtypes should be revoked was carried out by the ACNC Assistant Commissioner, pursuant to a delegated power.
[4] Exhibit A4, T18 and T117.
In his decision of 11 December 2014, the Assistant Commissioner accepted that the applicant met the requirements of the ACNC Act for registration as a charity in two subtypes under s 25‑5 of the ACNC Act, namely, advancing health and advancing public debate (Items 1 and 12).[5] He directed that the ACNC Register be amended to show that the applicant was registered for each of these subtypes of charity with effect from 1 January 2014.
[5] Exhibit A4, T3/116.
However, the Assistant Commissioner considered that the applicant had not, as at 1 January 2014 or at any time since, met the eligibility requirements for registration as a charity of the subtype of protecting human rights (Item 7).[6] Given that the applicant had never satisfied those requirements, he revoked that registration with effect from 1 January 2014, being the date upon which the applicant had, pursuant to the transitional provisions, first been registered in that subtype.
[6] Exhibit A4, T3, at [152]‑[153] and [218].
Further, the Assistant Commissioner considered that the applicant’s principal activity was not the promotion or prevention of the control of diseases in human beings (Item 13). He concluded at [16] that “to date there has been no rigorous independent scientific evidence that finds that the ill‑health complained of is caused by the physiological effects from wind turbines [or] that there are human diseases called “wind turbine syndrome” or “vibroacoustic disease””. The Assistant Commissioner considered that the applicant had not satisfied the eligibility requirements for this subtype at any time since its initial registration in the subtype. However, having regard to the tax consequences for the applicant and third parties, he decided not to make the revocation of registration retrospective. Accordingly, the Assistant Commissioner revoked the applicant’s registration as a charity of that subtype with effect from the date of his decision, namely, 11 December 2014.
The revocation of the applicant’s registration in Item 13 had two immediate effects. First, donations to the applicant were no longer tax deductible. Secondly, the applicant became obliged by cl 21.1(h) of its Constitution to transfer the balance of its Gift Fund to another institution with rights of a defined kind. Clause 21.1(h) is a clause of the kind required by s 30‑125 of the ITA Act as a condition of an entity’s endorsement as a deductible gift recipient.
As already noted, the applicant had by its letter to the ACNC of 18 February 2014 also sought to be registered in the subtype “advancing education”, but the Charities Transitional Act did not have effect of deeming it to have that registration. The Assistant Commissioner treated the applicant’s notice in this respect as a request to be registered in the subtype “advancing education”. He rejected that application. The applicant did not object to that decision and it was not the subject of the application to this Tribunal. It is not necessary to mention it further.
the Objection Decision
The applicant exercised its right pursuant to s 35‑20 of the ACNC Act and objected to the revocation of its registration in subtypes 7 (protecting human rights) and 13 (health promotion charity). It did so by a letter of “appeal” dated 9 February 2015.
Section 160‑15 of the ACNC Act required the Commissioner to decide whether to allow the objection, wholly or in part, or to disallow it. On 23 June 2015, the Commissioner disallowed the applicant’s objection (the Objection Decision).[7]
[7] Exhibit A4, T5.
In relation to the applicant’s claim to be a health promotion charity, the Commissioner concluded that the applicant’s activities were primarily information sharing and advocacy relating to concerns about infrasound, low frequency noise and vibration from wind farms, and the possible effects which these may have on human health.[8] Although the Commissioner accepted that the applicant is also interested in other sources of emissions of a similar kind, she considered that these were not the focus of the applicant’s activities.[9] The Commissioner then concluded that the weight of scientific evidence did not support the existence of diseases or adverse health effects caused by emissions from wind farms or other sources of infrasound, low frequency noise or vibration. That being so, the Commissioner concluded that the applicant could not be regarded as an entity whose principal activity is to promote the prevention or the control of diseases in human beings.[10]
[8] Exhibit A4, T3, at [59].
[9] Ibid.
[10] Ibid, at [92], [108], [176], [299] and [355].
The present application for review
Section 160‑25 of the ACNC Act provides (relevantly) that an entity dissatisfied with an objection decision by the Commissioner may apply to this Tribunal for review of the objection decision. The applicant’s present application is an exercise of this right.
Division 165 of the ACNC Act modifies the operation of the Administrative Appeals Tribunal Act 1975 (the AAT Act) in a number of respects.
Amongst other things, s 165‑15 has the effect that an application to this Tribunal should set out a “statement of the reasons for the application”. The applicant attached a statement in purported compliance with this requirement. However, it was, with respect to the applicant, misconceived as the statement set out grounds for review derived from s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The jurisdiction to hear and determine applications under the ADJR Act is not vested in this Tribunal. Counsel for the applicant recognised that this was so and did not rely on the stated grounds. Instead, at the direction of the Tribunal, each party filed a Statement of Facts, Issues and Contentions (SFIC).
Section 165‑40 of the ACNC Act controls the matters which an applicant may agitate on an application for review and, in addition, provides for the applicant to have the burden of proof:
165‑40 Grounds of objection and burden of proof
On an application for review of an objection decision:
(a)the applicant is, unless the Administrative Appeals Tribunal orders otherwise, limited to the grounds stated in the objection to which the objection decision relates; and
(b)the applicant has the burden of proving that the administrative decision concerned should not have been made or should have been made differently.
As can be seen, absent an order to the contrary by the Tribunal, an applicant is, on a review of the present kind, limited to “the grounds stated in the objection to which the objection decision relates” and has the burden of proving that the “administrative decision” should not have been made or should have been made differently. The standard of proof is the ordinary civil standard. By virtue of ss 155‑5 and 300‑5 of the ACNC Act, the “administrative decision” is the decision which is the subject of the objection, in this case, the decision of the Assistant Commissioner.
As s 165‑40 is in almost identical terms to s 14ZZK(1) of the Taxation Administration Act 1953 (Cth), assistance can be derived from the authorities which have considered the effect of that provision. Amongst these is the decision of the High Court in Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614, in which Brennan J observed at 621:
It would be inappropriate for a court determining an appeal to make an order altering the tax liability assessed (s. 199) unless the court were satisfied that the amount to which it proposed to alter the assessment represented the true tax liability of the taxpayer. Although the grounds of objection limit the grounds of appeal, the ultimate question for the court hearing the appeal is not whether the grounds have been made out but whether the amount assessed as taxable income is wrong. The burden which rests on a taxpayer is to prove that the assessment is excessive and that burden is not necessarily discharged by showing an error by the Commissioner in forming a judgment as to the amount of the assessment.
Similarly here, in our view it will not necessarily be sufficient for the applicant to show that one or more of the grounds relied upon has been made out. We must affirm the decision under review unless we are satisfied, by reference to the considerations made relevant by the ACNC Act, and the material before us, that that decision should not have been made, or should have been made differently.
Ordinarily, one would expect the identification of grounds of objection to be straightforward. An entity which wishes to object to the revocation of its registration is required to make the objection “in the approved form” and must state in that form “fully and in detail, the grounds on which the entity relies”.[11] The Commissioner has, in the exercise of the power vested by s 190‑10 of the ACNC Act, approved a form for the making of objections pursuant to s 160‑5.
[11] The ACNC Act, s 160‑5.
However, the applicant did not use the approved form. Instead, it sent a letter to the Commissioner on 9 February 2015, attaching a document setting out the basis for an “appeal” against the decision of the Assistant Commissioner. The 31 page attachment did not identify separately the grounds of the objection. Instead, the attachment was an amalgam of grounds, submissions and evidence. The Commissioner noted that the applicant’s “appeal” was not in the approved form but, given that the applicant’s intention to object to the Assistant Commissioner’s decision was clear, determined to treat the 9 February 2015 letter and the attachment as a notice of objection.
The Commissioner extracted eight headings in the attachment appearing under the heading “Comments on Mr Locke’s Reasons for Decision” on pages 2‑13 of the notice of objection and treated those headings and one additional matter as the grounds of objection. This is apparent from [35]‑[36] of the Commissioner’s reasons:
[35]The Applicant makes “Comments on Mr Locke’s Reasons for Decision” in pages 2‑13 of the Notice of Objection. The headings set out in those comments are as follows:
(1) Restricted focus on wind turbine noise research evidence only;
(2) Environmental sleep disorder excluded from considerations;
(3) Deliberate exclusion of mental health disorders;
(4) “No evidence” of physiological effects from wind turbines;
(5)“No rigorous independent scientific evidence” of “Vibroacoustic Disease”;
(6)“No rigorous independent scientific evidence” of “Wind Turbine Syndrome”;
(7)New research supporting Pierpont’s original hypothesis about the role of Infrasound;
(8)Acceptance by Other Medical Practitioners of Wind Turbine Syndrome.
[36]These eight headings, together with the general comments made regarding human rights will be treated as the nine grounds of objection for the purpose of this objection decision.
Later, at [300]‑[350], the Commissioner addressed each of these grounds.
Given the terms of s 165‑40 of the ACNC Act and the importance of the stated grounds of objection to the Tribunal’s task on the review, we reviewed for ourselves the applicant’s letter of 9 February 2015 and the attachment. We distilled the grounds of objection contained in those documents in a way which differs in some respects from those stated by the Commissioner. Subject to two alterations, the parties agreed on the Tribunal’s distillation of the grounds. Accordingly, the hearing proceeded on the basis that the grounds to which s 165‑40 refers are as follows:
(a)The applicant’s activities are not confined to the effects of sound and vibration produced by wind turbines (pages 2-3);
(b)An extensive body of research relating to the health impacts and diseases in humans caused by other sources of noise had been ignored (pages 3 and 5);
(c)The applicant’s concern with “environmental sleep disorder” which was, at the time of the decision, specifically included as Objective 8 of the applicant’s Constitution is accepted by the World Health Organisation and the American Academy of Sleep Medicine as a “disease” and that these facts were ignored (page 5);
(d)The consideration of the effects of sound and vibration had been confined, inappropriately, to physiological effects, and so had not taken account of the evidence of effects on mental health (pages 7‑8);
(e)The conclusion that there is “no rigorous independent scientific evidence” of physiological effects from:
(i) wind turbines;
(ii) vibroacoustic disease;
(iii) wind turbine syndrome;
is, in each case, incorrect (pages 8‑13);
(f)The Assistant Commissioner should not have relied on some of the studies and literature to which he referred, either at all or without qualification (pages 14-21), and he ignored other relevant studies (page 16);
(g)The conclusion that the applicant did not have the purpose of promoting or protecting human rights was wrong because the infliction of disease on neighbours by industrial operations whether by the noise or by other means:
(i) contravenes Article 7 of the International Covenant on Civil and Political Rights (ICCPR);
(ii) if done with the acquiescence of public officials, contravenes Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Publishment (the CAT) and may also contravene Articles 1 and 2 of the CAT (pages 21‑22).
(h)The conclusion that the applicant did not have the purpose of promoting or protecting human rights was wrong because it ignored the established human right to enjoy the highest attainable standard of physical and mental health and the requirement for proper regulation and enforcement of noise pollution policy to protect, maintain and promote that right as provided by:
(i) Article 12 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR); and
(ii) Article 24 of the Convention of the Rights of the Child (the CROC) (page 1 footnote 5).
Ground (a) raised an issue concerning the nature and reach of the applicant’s activities. Essentially, it involves a question of fact. Grounds (b) to (f) raised in diverse ways issues of the relationship between exposure to noise and vibration, on the one hand, and adverse impacts on human health, on the other, but with particular reference to the noise and vibration said to be produced by wind turbines. They concerned the correctness of the conclusion of the Assistant Commissioner on that issue.
Grounds (g) and (h) related to the applicant’s claim to be entitled to registration as an Item 7 charity, namely, promoting or protecting human rights. In his final submissions, counsel for the applicant said that the applicant no longer pursued Ground (g). Accordingly, it need not be considered further.
None of the grounds identified any matter listed in s 35‑10(2) of the ACNC Act as requiring particular consideration on the review. We have nevertheless had regard to those matters in addressing the matters raised by the parties.
The material time for consideration
As already noted, the decision which is the subject of the review by the Tribunal is the Objection Decision, that is, the decision by the Commissioner disallowing the applicant’s objection to the revocation decision of the Assistant Commissioner. That is the effect of s 160‑25 of the ACNC Act. It is also indicated by the numerous references to the “Objection Decision” in div 165 of the ACNC Act.
However, s 165‑40 makes it apparent that the Tribunal is to review the Objection Decision by considering whether the Assistant Commissioner’s decision to revoke the applicant’s registration in Items 7 and 13 “should not have been made, or should have been made differently”. That task is to an extent confined as, absent an order from the Tribunal to the contrary, the applicant is limited to the grounds of objection to the decision of the Assistant Commissioner which it raised in the objection.
This raises an issue as to the time at which the Tribunal is to assess the claimed entitlement of the applicant to registration in Items 7 and 13. Is it the period in the past in respect of which the applicant was found not to be entitled to registration; the time of this Tribunal’s decision; the time of the Objection Decision (23 June 2015); the time of the Assistant Commissioner’s decision (11 December 2014); or, in the case of the revocation of the applicant’s registration as an Item 7 charity, the date on which the revocation took effect (1 January 2014)?
Until relatively late in the proceedings, both parties contended that the Tribunal should make the determination by reference to the state of affairs existing as at the time of its own decision. They submitted that this was the effect of s 43 of the AAT Act, s 35‑10 of the ACNC Act, and of the decision in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. The parties advanced this contention in a joint submission made on 15 January 2016 addressing the material time for the Tribunal’s review, in their respective opening submissions, in their respective outlines of closing submissions and, initially, in their respective oral closing submissions. However, part way through the oral closing submissions, the parties changed their positions. Both then contended that the material time for the Tribunal to consider the matter was at 11 December 2014, being the date of the decision of the Assistant Commissioner.
We consider the parties’ ultimate position to be correct, although we would prefer to say that the Tribunal is to consider the facts and circumstances bearing on the applicant’s entitlement to registration in the period up to 11 December 2014, taking into account that the Assistant Commissioner’s finding was that the applicant had not been entitled, as at 1 January 2014, to registration in either Item. It is appropriate to indicate our reasons for that conclusion.
Section 43(1) of the AAT Act provides:
Tribunal’s decision on review
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Thus, the Tribunal is empowered “to exercise all the powers and discretions” conferred on the decision‑maker by a relevant enactment and has wide powers with respect to the implementation of its decision. The statement of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 as to the task of the Tribunal has been influential and often cited:
The question for the determination of the Tribunal is not whether the decision which the decision‑maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. (emphasis added)
Thus, ordinarily the task of the Tribunal on an application for review is to consider the matter de novo having regard to the facts and circumstances bearing on the subject matter of the review at the time of the Tribunal’s consideration.
Although s 165‑5 of the ACNC Act modifies the application of s 43 in the review of objection decisions in some respects, it does not, in terms, modify the application of s 43(1).
However, the position indicated by s 43(1) and stated in Drake is subject to any indication to the contrary in the enactment providing for review of a decision by the Tribunal or which arises inherently from the nature of the decision being reviewed or its subject matter.
In Shi, the High Court considered whether the Tribunal was limited, on a review of a decision of the Migration Agents Registration Authority (MARA) to cancel the registration of a migration agent on the grounds contained in s 303 of the Migration Act 1958 (Cth), to the facts and circumstances existing at the time of MARA’s decision. Subject to one qualification, all members of the Court considered that the Tribunal was to consider the state of affairs concerning the migration agent which existed at the time of its own decision and not those which existed at the time of MARA’s decision. However, all members of the Court emphasised the importance of close attention to the enabling legislation when determining questions of this kind (Kirby J at [25], Hayne and Heydon JJ at [92] and Kiefel J at [119], [133]).
Hayne and Heydon JJ referred to ss 25 and 43 of the AAT Act and to s 303 of the Migration Act. Their Honours noted at [96] that the questions for the Tribunal reviewing the cancellation decision were “first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged … was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant’s registration or to caution him”.[12] At [101], Hayne and Heydon JJ concluded that there was nothing in the Migration Act which fixed a particular time as the point at which a migration agent’s fitness to provide immigration assistance was to be assessed and that s 303 contained no temporal element.
[12] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [96] (emphasis in the original).
Kirby J considered that four features of the legislative scheme indicated that it was the facts and circumstances existing at the time of the Tribunal’s decision which were to be considered: the nature of the Tribunal; the function of the Tribunal; the purpose of s 43; and the nature of the decision under review. In relation to the last of these matters, Kirby J considered it was pertinent that the circumstances bearing on each of the grounds for cancellation contained in s 303 could be supervening events, that is, events occurring between MARA’s decision and that of the Tribunal, at [48]. This indicated the appropriateness of the Tribunal considering the position as at the time of its own decision. His Honour endorsed the statement of Davies J in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92‑93 that it is for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision, at [37]. Kirby J accepted that there may be instances in which it will be inherent in the nature of a particular decision that review of the decision is confined to identified past events, at [44], but did not consider that the circumstances in Shi provided such a case.
Kiefel J (with whom Crennan J agreed on this issue) noted that the task of the Tribunal was to reach its own conclusion as to the correct decision by conducting an independent assessment and determination of the matters necessary to be addressed and that its exercise of power was not dependent upon the existence of error in the original decision, at [141]. Her Honour concluded:
In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision‑maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.[13]
[13] Shi, at [142]‑[143] (citations omitted).
Kiefel J distinguished between the grounds which could warrant the cancellation of the agent’s registration. Her Honour considered that, insofar as MARA had relied on the agent’s non‑compliance with the relevant code of conduct, there was a temporal limitation, being the time at which the non‑compliance had occurred. In relation to that matter, her Honour found the Tribunal was restricted to a consideration of events to that point of time, at [146]. However, the position was different with respect to the separate question of whether the agent was “a person of integrity” or not “a fit and proper person” to be a migration agent. Kiefel J considered that that ground did not contain any temporal limitation, at [149].
In our opinion, the decision in Shi indicates two matters which are particularly relevant presently. The first is the necessity to have close regard to the terms of the enabling legislation. The second is that the presence of a temporal limitation in the subject matter of the decision under review may have the effect that the Tribunal is to carry out its review by reference to the circumstances at an antecedent time. This being so, we do not regard the decision in Shi as being decisive of the identification of the time to be considered in the present case. Close regard must instead be had to provisions in the ACNC Act and to the bases upon which the revocation of the applicant’s registrations is said to be warranted.
Section 35‑10 is pertinent in this respect. As we have already observed, s 35‑10(1)(a) enlivens the Commissioner’s discretion to revoke registration if the Commissioner reasonably believes that, at some time in the past, (but after the date of initial registration) an entity had not been entitled to registration or is not, at the time of the Commissioner’s consideration, entitled to that registration. The former of these alternatives has an inherent temporal limitation.
As previously noted, the Assistant Commissioner considered that the applicant had not been entitled to registration as an Item 7 or Item 13 charity at any time after 1 January 2014 until his decision on 11 December 2014. He formed that belief by reference to the facts and circumstances existing during that period.
In our view, this consideration is sufficient by itself to indicate that the circumstances of this case are different from those considered in Shi.
There are other bases upon which Shi should, in our view, be distinguished. The mechanisms for review considered in Shi did not include the intermediate step of a process of objection of the kind for which the ACNC Act provides. It was the decision of the primary decision‑maker which was the subject of review by the Tribunal in that case.
Perhaps more importantly, the provisions for review considered in Shi did not include a counterpart to s 165‑40 of the ACNC Act. As already noted, s 165‑40(b) imposes a burden of proof on an applicant. That burden is to prove that the administrative decision should not have been made or should have been made differently. It is not, we observe, an onus of proving that the applicant is entitled (presently) to registration or that the Objection Decision was wrongly made. Instead, an applicant has an onus of establishing error in the original decision. That requirement suggests naturally that regard is to be had to the facts and circumstances existing at least by the time that that decision was made. It is not readily to be expected that the Tribunal is to consider whether or not the decision should not have been made by reference to facts and circumstances which have come into existence only since the making of the decision and which could not have had any bearing on the impugned decision.
Subparagraph (a) in s 165‑40 limits (absent an order otherwise) the matters to which the Tribunal may have regard to the grounds of objections stated in the objection to which the Objection Decision relates. That limitation indicates that the focus is to be on the complaints which the applicant made about the administrative decision. In our opinion, the confinement of an applicant in that way does not sit comfortably with the notion that the Tribunal is to consider the position by reference to the facts and circumstances existing at the time of its own decision. Instead, an applicant must show error in the original decision by reference to the grounds of complaint upon which it previously relied. It is to be expected that these grounds will be anchored in the facts and circumstances existing by the time of the original decision.
Section 165‑40 is relevant in another way. It indicates that the task of the Tribunal on the present review differs from that discussed in Drake and in Shi and, in particular, that the Tribunal is not considering the matter de novo, as counsel for the Commissioner contended in the written outline of closing submissions. Instead of the Tribunal reviewing the administrative decision on its merits and determining whether the decision of the decision‑maker is the correct or preferable decision on the material before it, it is to consider whether the applicant has proved, having regard only to defined grounds, that the decision should not have been made or should have been made differently. In our opinion, this makes it inappropriate to apply, uncritically, the reasoning in Shi and in Drake in the present case.
The circumstances of the present case are analogous to those considered by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342. Those circumstances were summarised by Kiefel J in Shi at [144]. A widow who had been receiving the widows’ pension commenced a de facto relationship, a circumstance which disentitled her to continuance of the pension. The statutory scheme was such that a pension, once cancelled on this ground, could be reinstated only on a further claim being made. Davies J concluded that, in that circumstance, the Tribunal had to limit its consideration to the circumstances existing at the time when the decision to cancel the pension was made when determining whether that was the correct or preferable decision. It was not for the Tribunal to determine whether the widow’s entitlement had resumed following the cessation of the de facto relationship.
It remains to consider two further decisions. The first is Commissioner of Taxation v Cancer and Bowel Research Association Inc (as trustee for the Cancer and Bowel Research Trust) [2013] FCAFC 140; (2013) 305 ALR 534. That decision concerned, relevantly, the revocation by the Commissioner of Taxation of a trustee’s endorsement as a health promotion charity and therefore as a deductible gift recipient. The relevant power of revocation was contained in s 426‑55 of Sch 1 of the Taxation Administration Act 1953 (Cth) (the TA Act) which provided (relevantly):
(1) The Commissioner may revoke the endorsement of an entity if:
(a) the entity is not entitled to be endorsed; or
…
(2)The revocation has effect from a day specified by the Commissioner (which may be a day before the Commissioner decided to revoke the endorsement).
This was the counterpart in the ITA Act to s 35-10 of the ACNC Act. It applied until the ACNC Act was enacted and came into operation.
The question in Cancer and Bowel Research was whether the Tribunal was to review the revocation of registration of the Trust as at the date of the decision of the Commissioner of Taxation, or as at the earlier date at which the revocation of registration was to take effect. This Tribunal had concluded that the power of revocation depended upon an adverse finding as to the Trust’s entitlement to endorsement as at the date upon which the Commissioner made the decision to revoke. The Full Court of the Federal Court held that this approach was correct.
There was no express consideration by the Full Court in Cancer and Bowel Research of whether it was the facts and circumstances existing as at the date of the Tribunal’s decision which were to be considered. It seems to have been assumed that that date was not the relevant date so that the only contest was between the two earlier dates. We note that the Full Court did not refer to Shi but, having regard to the presence of Edmonds J in the Coram (His Honour also having been a member of the Full Court of the Federal Court in Shi), doubt that it was overlooked.
We regard the Full Court decision in Cancer and Bowel Research as being consistent with the approach which we consider appropriate in the present case.
The second case is one to which counsel for the Commissioner referred the Tribunal. This was Fletcher v Commissioner of Taxation (1988) 19 FCR 442. In that case, the Full Court of the Federal Court held that this Tribunal was entitled, on review of the Commissioner of Taxation’s disallowance of objections, to exercise the discretions vested in the Commissioner even though the Commissioner had not himself exercised the discretions. As we understood the submission, it was to the effect that the decision in Fletcher indicated that the Tribunal is not confined to the material which was before the Assistant Commissioner or only to events which had occurred up to the time of his decision.[14] Counsel submitted that his was particularly so, given that s 14ZZK of the TA Act is, materially, in the same terms as s 165‑40.
[14] Commissioner’s Outline of Closing Submissions, at [3].
There are at least two reasons why we consider that this submission should not be accepted. First, s 14ZZK was not inserted into the TA Act until 1991, well after Fletcher had been decided. The counterpart to s 14ZZK in the Income Tax Assessment Act 1936 (Cth), s 190, was expressed in terms which are, in material respects, different from s 165‑40. Secondly, the statutory power, the exercise of which gave rise to the review in Fletcher, was s 177F of the ITA Act, a provision in very different terms to s 35‑10 of the ACNC Act. We also note the Full Court’s emphasis, at 452, on the necessity “to examine closely the relevant statutory provisions”.
We have concluded therefore that the Tribunal should carry out the review by reference to the facts and circumstances existing up to the time of the decision of the Assistant Commissioner, namely, 11 December 2014, but noting that his determination was that the applicant had not been entitled to registration in either subtype as at 1 January 2014.
We add that a finding by the Tribunal that the applicant does, presently, satisfy the eligibility requirements for registration in Item 7 or Item 13 would not avail it, at least while the conclusion that it was not entitled to registration in the period between 1 January and 11 December 2014 still stands. That is because the Tribunal is not empowered to give effect to such a conclusion. It is not for the Tribunal to consider whether the applicant is entitled to a fresh registration. If the applicant’s circumstances have changed since those warranting deregistration, this is a matter to be addressed on an application by the applicant pursuant to div 30 of the ACNC Act for registration.
The conclusion that the Tribunal is to carry out its review by reference to the facts and circumstances pertaining at an antecedent time does not mean that the Tribunal is confined to considering only that evidence which was in existence at that time. Evidence which is subsequently ascertained is capable in some circumstances of being rationally probative of the true state of affairs at an antecedent time, even though the existence of the evidence was not then known by the decision‑maker. The entitlement of a party to a contract to rely upon a subsequently ascertained breach by the other to justify termination of the contract provides an illustration in another context: Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693. Accordingly, we accept that it will be appropriate for the Tribunal to have regard to some of the evidence which has come into existence only since 11 December 2014 for this limited purpose.
It is also possible that to the extent that s 35‑10 of the ACNC Act involves the exercise of a residual discretion, the Tribunal may have to consider matters occurring since 11 December 2014. However, it was not suggested that the residual discretion should be exercised in favour of the applicant in this case.
Against this background, the principal issues for the Tribunal’s determination can be stated as:
(a)what was the principal activity of the applicant in the period between 3 December 2012 (when the applicant obtained registration under the ACNC Act on its commencement) and 14 December 2014;
(b)was that principal activity to promote the prevention or control of diseases in human beings?
(c)did the applicant before 14 December 2014 have as a purpose the promoting or protecting of human rights?
We note that this formulation of the issues is different from that for which the applicant contended in relation to Item 13,[15] namely, whether there is a disease or diseases to which the applicant’s activities are directed and whether the applicant’s principal activity is to promote the prevention or control of that disease or diseases.
[15] Transcript, 21 September 2016, p 734 lines 7‑11.
Item 13: Health Promotion Charity – general
It is convenient at the outset to consider the terms of Item 13 in s 25‑5(5) of the ACNC Act. As already noted, Item 13 provides for a subtype of charity in the following terms: “[i]nstitution whose principal activity is to promote the prevention or the control of diseases in human beings”. In our view, this description of the subtype is to be understood as a composite, but it is convenient to note some of its separate elements.
Institution
First, Item 13 identifies the kind of charitable body to which it refers by the word “institution”. This contrasts with the noun “entity” used in the description of subtypes 1‑12. In context, an institution seems to be a particular type of entity: see Stratton v Simpson (1970) 125 CLR 138. Given the circumstances of the applicant to which we will refer shortly, there is scope for doubt that it is an “institution” in the requisite sense. However, the Commissioner accepted, as an agreed fact, that the applicant is an institution of that kind. We will therefore proceed on that basis.
Activity and purpose
Secondly, Item 13 refers to the principal “activity” of the institution. This contrasts with Items 1‑12, each of which refers to the entity’s “purpose”. This difference in terminology suggests, prima facie, that the focus in Item 13 is on the actual activities of the entity, rather than its purpose. Nevertheless, we consider that the purpose of the entity’s activities remains an important consideration. That is indicated by the terminology used to identify the necessary character of the entity’s principal “activity”, that is, the infinitive phrase “to promote the prevention or the control of diseases in human beings”. An activity to promote a consequence seems necessarily to incorporate an element of the purpose to which the activity is directed. It connotes something more than the effect of the activity, although if that effect is the natural and probable consequence of the activity, it may constitute material from which the purpose of the activity can be inferred. It also connotes a requirement for there to be a rational or plausible link between the activity, on the one hand, and the prevention or control of a disease, on the other.
Item 13 is not to be read as though it refers to an institution whose “principal activity is the prevention or the control of diseases in human beings”. If that expression had been used, it would be more natural to understand that the focus of the enquiry would concern the relationship between the institution’s identified activity or activities, on the one hand, and the effect on the prevention or control of diseases on the other. However, as we have said, the use of the infinitive phrase “to promote” suggests that the focus is instead on the purpose of the institution’s identified principal activity.
Iacobucci J referred to a distinction of this kind in Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue [1999] 1 SCR 10 at [152] when discussing the term “charitable activities”:
[I]t is really the purpose in furtherance of which an activity is carried out, and not the character of the activity itself, that determines whether or not it is of a charitable nature. Accordingly, this Court held … that the inquiry must focus not only on the activities of an organization but also on its purposes.
This understanding of Item 13 is supported by reference to the legislative history to which counsel for the Commissioner drew attention. Section 18(h) of the Income Tax Assessment Act 1915 (Cth) allowed taxpayers a deduction against assessable income for gifts “to public charitable institutions”. In Chesterman v The Federal Commissioner of Taxation (1923) 32 CLR 362, the High Court held that the term “charitable purposes” in s 8(5) of the Estate Duty Assessment Act 1914‑1916 (Cth) was used in its popular sense, that is, broadly the relief of those in “necessitous circumstances”. On appeal, the Privy Council overturned this decision and held that the term “charitable purposes” was used in its technical legal sense and was not restricted to the relief of poverty: Chesterman v The Federal Commissioner of Taxation (1925) 37 CLR 317. That had been the meaning given to the term “charitable purposes” in The Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531.
Shortly afterwards, the Parliament amended both ss 8(5) and 18(h)[16] so as to confine the exemption from tax and duty to gifts to, relevantly, “a public benevolent institution” and to funds established for the purpose of providing relief to those in necessitous circumstances. In Perpetual Trustee Company Ltd v The Federal Commissioner of Taxation (1931) 45 CLR 224, the High Court held that the term “public benevolent institution” meant an institution organised for the relief of poverty, sickness, destitution or helplessness.
[16] The Estate Duty Assessment Act was amended in 1928 and the Income Tax Assessment Act in 1927.
Apart from amendments which are not presently material, there things stood until 2001 when tax concessions in respect of “a charitable institution whose principal activity is to promote the prevention or control of diseases in human beings” were introduced: Taxation Laws Amendment Act (No 2) 2001 (Cth). This amendment (the 2001 Amendment) inserted the Item 1.1.6 to which reference was made earlier in these reasons into s 30‑20(1) of the ITA Act.
The Minister’s Explanatory Memorandum for the amending bill indicated that its purpose was “to extend the taxation treatment currently given to public benevolent institutions (PBIs) to certain charitable institutions”, being those “whose principal activity is promoting the prevention or control of disease in human beings”, at [5.1]‑[5.2]. The Explanatory Memorandum went on to indicate that the Government recognised that the activities of some PBIs had changed with the consequence that they had ceased to be eligible for the tax concessions:
[5.3]The Treasurer announced … that the Government would ensure that organisations whose main activity is promoting the prevention or control of disease in humans would continue to access the tax benefits available to PBIs. These charitable institutions may have been PBIs in the past but, over time, their activities have changed such that they may no longer be PBIs and therefore, no longer eligible for taxation concessions such as exemption from FBT and sales tax.
Later, the Explanatory Memorandum noted that, generally, a PBI has as “its main or principal object” the relief of poverty, sickness, suffering, distress, misfortune, destitution or helplessness.
In relation to DGR status, the Explanatory Memorandum stated:
[5.20]The charitable institutions to be covered by this amendment are medical or health organisations whose principal activity is preventative in nature, rather than providing direct relief of sickness or suffering. These organisations typically focus on particular types of ailments or health issues, for example, asthma, cancer, AIDS, arthritis, heart conditions, brain conditions, paraplegia and kidney conditions. (Emphasis added)
As earlier noted, the terms of Item 1.1.6 in s 30‑20(1) of the IT Act have been replicated in Item 13 of s 25‑5(5) of the ACNC Act. In our view, this legislative history is important. First, it tends to confirm that Item 13 contains a purposive element. Secondly, it indicates that health promotion charities are those which, while promoting the prevention or control of diseases, are not themselves engaged in the treatment and alleviation of sickness and suffering. As will be seen shortly, this is significant in the resolution of the applicant’s claimed entitlement to registration as an Item 13 charity.
Item 13 contemplates that an institution may have more than one activity. So also may an institution have more than one purpose. The adjective “principal” indicates that registration as an Item 13 charity is to be determined by reference to the entity’s main or predominant activity. This requires identification of the entity’s principal activity amongst all its activities and then the determination of whether that activity is to promote the prevention or control of diseases in human beings. We accept, however, that the one activity can have two or more aspects to it.
The identification of an institution’s principal activity is very much a question of fact, to be determined having regard to all the evidence bearing upon the nature of its activities and their purposes. In an analogous context, French J said in Victorian Women Lawyers’ Association v Federal Commissioner of Taxation [2008] FCA 983; (2008) 170 FCR 318 at [146] that the assessment is to be made “holistically”.
The institution’s own description of its activities and purposes, whether in its constitution or elsewhere, will be relevant but not conclusive. Thus, in Commissioner of Taxation v Word Investments Ltd [2008] HCA 55; (2008) 236 CLR 204, the plurality said at [17]:
[I]t is necessary to examine the objects, and the purported effectuation of those objects in the activities, of the institution in question. In examining the objects, it is necessary to see whether its main or predominant or dominant objects, as distinct from its concomitant or incidental or ancillary objects, are charitable. (emphasis added and citation omitted)
Although in dissent, Kirby J made a similar observation at [174], “in my opinion, the real discrimen for the characterisation of an entity propounded as a “charitable institution” is what that entity actually does and what purposes it actually pursues” (emphasis added).
In this respect, the warning of Lord Greene MR in Royal Choral Society v Commissioners of Inland Revenue [1943] 2 All ER 101 at 106 is pertinent: “[i]t may very well be that a purpose which, on the face of it looks to be the real purpose, on close examination, is found not to be the real purpose”.
We keep in mind that in this area of the law, as in so many other areas, purpose is not to be equated with motive. The reasons of an institution for engaging in an activity may be revelatory of its purpose but are not themselves conclusive of that purpose: see, Brookton Co-operative Society Limited v Federal Commissioner of Taxation (1981) 147 CLR 441 at 466‑7.
We also note the guidance contained in the Commissioner’s Interpretation Statement as follows:
The principal activity is the main activity conducted by the charity, or the activity that it conducts more than any other activity. While most often it will take the majority of the charity’s time or resources, there may be cases where it does not. An HPC can undertake other activities, but promoting the prevention or control of disease(s) in human beings must be its main activity. For example, if a charity had five activities, four of which each took 15% of its time and resources, and a fifth which took up 40% of its time and resources, it is the fifth which would be considered its “principal activity”.[17]
[17] Exhibit A4, T292/6202; Australian Charities and Not-for-profits Commission, “Commissioner’s Interpretation Statement: Health Promotion Charities” (Interpretation Statement), CIS 2015/01, 5. Principal activity, at [5.2] (emphasis in original).
Disease
The term “disease” is not defined in the ACNC Act. The Macquarie Dictionary gives the following (relevant) definition of the word disease “morbid condition of the body, or of some organ or part; illness, sickness; ailment … any deranged or depraved condition, as of the mind, affairs etc.”
Although the applicant referred its experts to various definitions, its ultimate position was that the Tribunal should apply the definition of “disease” in s 34‑20 of the ITA Act, namely:
(3)Disease includes any mental or physical ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin.
The Explanatory Memorandum for the 2001 Amendment to the ITA Act referred to this definition (then in s 995‑1(1) of the ITA Act).
The applicant relied on the authorities to which Pearce and Geddes refer at [3.36] of “Statutory Interpretation in Australia” (LexisNexis Butterworths, 8th Edition, 2014) which indicate that when a legislature uses a term in a later statute in the same context that the term was used in an earlier statute, it may be taken, absent any contrary indication, to have intended that the word be used with the same meaning. The applicant then submitted that it is appropriate for the Tribunal to have regard to the ITA Act definition of disease.
The Commissioner submitted that reference to the ITA definition is inappropriate for a number of reasons. First, the only use currently of the term “disease” in the ITA Act is in div 34 of that Act which is concerned with the deductibility of expenses associated with the acquisition of occupational clothing, this being a very different context. Secondly, the Dictionary in s 300‑5 of the ACNC Act defines some terms by reference to the ITA Act but not the word “disease”. This supports an inference, the Commissioner submitted, that use of the ITA definition is not intended.
The Commissioner submitted that the term “disease” should instead be determined by reference to the medical “register”, this being the most appropriate “audience or register”. The Commissioner referred in this respect to the speech of Lord Simon of Glaisdale in Maunsell v Olins [1975] AC 373 at 391:
Statutory language, like all language, is capable of an almost infinite gradation of “register” – ie, it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.
The High Court referred to this passage with approval in Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389 at 398.
Finally, the Commissioner referred to the decision in Re Healthy Cities Illawarra Inc and Federal Commissioner of Taxation [2006] AATA 522; (2006) 63 ATR 1165 in which, at [49], Block DP said in relation to Item 1.1.6 of the ITA Act that “whether a particular condition is to be characterised as a disease will be in most cases a matter for expert medical opinion”.
On this basis, the Commissioner urged on the Tribunal the definition proffered by Professor Wittert, a witness called by the Commissioner:
A disease is a pathological condition of a body part, an organ, or a system resulting from various causes, such as infection, genetic defect, or environmental stress, and characterized by an identifiable group of signs or symptoms.[18]
[18] Exhibit R56, at ‘Response to expert witness questions for Professor Gary Wittert’ 1.
We do not regard these submissions of the Commissioner as persuasive. The legislative history supports an inference that the word “diseases” in Item 13 of s 25‑5(5) of the ACNC Act is used in the sense defined in the ITA Act or a sense similar to it. Section 300‑5 of the ACNC Act defines only a limited number of terms in that Act by reference to the ITA Act and these are terms of a technical nature, for example, “ABN”, “tax law” and “Australian law”. We do not think that it can reasonably be said that s 25‑5(5) is speaking to a medical audience or a medical “register”. It is speaking to the public generally and in particular, to those entities in the general public who engage, or wish to engage, in charitable activities of a particular kind. Finally, we consider that the passage in Healthy Cities upon which the Commissioner relies is not directed to the question of statutory construction which the Tribunal is presently considering but, rather, to the evidence which would enable the Tribunal to determine whether a given condition is within the concept of disease in the statutory context.
The applicant’s claim with respect to its promotion or protection of human rights has changed over time. The claim which it pursued in the Tribunal is a more confined claim than that which it advanced before the Assistant Commissioner and the Commissioner.
The applicant’s Constitution
Earlier in these reasons we set out the statement of the applicant’s objects in the Constitutions in force at material times. The Constitution adopted on 8 June 2011, which is set out at [152] above, contained no express reference to human rights. Such an express reference was included in the Constitution adopted on 18 July 2014, as Object (j) which was as follows:
(j)Provide assistance with preparation of complaints with respect to breaches of human rights. Such breaches of human rights could include but are not limited to breaches of the following Conventions to which Australia is a signatory:
· UN Convention on elimination of racial discrimination
· UN Convention against torture and other cruel inhuman or degrading treatment or punishment
· UN Convention on the rights of the child
· UN Convention on the rights of people with disabilities
We are willing to act on the basis that the statement of objects adopted on 18 July 2014 may have reflected a purpose of the applicant which antedated its incorporation into the Constitution. We also note, however, that the reference to human rights was removed from the applicant’s Constitution adopted on 24 January 2015. That was the form of Constitution which was in effect as at 23 June 2015 (the date of the Objection Decision).[376] Ms Laurie explained that the reference to human rights had been removed as it had been felt at the time that the applicant’s overarching purpose of preventing or controlling diseases encompassed the protection of human rights.[377] Nevertheless, the applicant modified its Constitution again on 26 April 2016, so as to re‑insert a reference to human rights.
[376] Statement of Agreed Facts, at [4]‑[7].
[377] Exhibit A7, at [188].
It is possible that the amendment to the applicant’s Constitution on 18 July 2014 to incorporate a reference to human rights was responsive to the letter which the applicant had received from the ACNC giving it the opportunity to “show cause” why its registration as an Item 7 charity should not be revoked. However, even if that be so, we do not consider that any inference adverse to the applicant should be drawn on that account.
The claim before the Assistant Commissioner and the Commissioner
In its submissions to the Assistant Commissioner, the applicant relied on all seven of the Conventions listed in the definition in the Parliamentary Scrutiny Act.[378] It contended that rights recognised by each of these Conventions were being infringed by the operation of wind turbines. Amongst other things, the applicant contended that sleep deprivation was a form of torture and asserted that public officials were “at risk of criminal charges for torture as a consequence of not taking action in relation to wind turbines”.[379]
[378] Exhibit A4, T3 at [132]‑[150].
[379] Ibid, at [144].
In the submissions in support of its objection to the decision of the Assistant Commissioner, the applicant made express reference only to the International Covenant on Civil and Political Rights (the ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT).[380] It seems, however, that the applicant continued to rely on all seven Conventions. Its submission to the Commissioner was encapsulated in the following passage:
The infliction of disease on neighbours by industrial operations, whether induced by noise or other means, contravenes Article 7 of [the ICCPR]. If done with the acquiescence of public officials it also contravenes Article 16 of [the CAT] and, in such cases, if it involves the infliction of severe physical or mental pain or suffering it contravenes Articles 1 and 2 of [the CAT].
Thus, diseases induced by industrial noise, whose prevention and control is the purpose of the Waubra Foundation, normally are due to breaches of human rights as stated in those human rights conventions to which Australia is a signatory. So in working to prevent and control disease induced by industrial noise, the Waubra Foundation is acting to promote and protect human rights. The two activities are integrally related, not alternative uses of the Foundation’s resources.[381]
[380] Ibid, T4/204.
[381] Ibid.
As can be seen, this was a submission that because the effect of the applicant’s activities was (as it asserted) to promote and protect human rights, that also was its purpose, or at least a purpose.
The Commissioner considered the applicant’s submissions with reference to each of the seven Conventions. Her conclusion was that the applicant had not shown infringements of any of them. Essentially, this was because the Commissioner considered that the weight of the scientific evidence did not establish that emissions from wind farms have adverse effects on human health and because the applicant had not provided evidence of activities which might reasonably demonstrate a purpose of promoting or protecting any of the identified human rights.
The claim concerning human rights in the Tribunal
The applicant’s SFIC in relation to the claim for registration as an Item 7 charity commenced with the following:
[81]It is submitted that, in the circumstances of this case, that if the applicant satisfies the requirements for entitlement to registration under Item 13 of the Table at 25‑5(5) of the ACNC Act, then it necessarily follows that the applicant is also entitled to registration under Item 7.
[82]As the Human Rights identified below include rights such as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”; an institution (or entity) that promotes the prevention or control of diseases in human beings must, as a corollary of that activity, also be “promoting or protecting human rights”: this is because the prevention or control of diseases is an antecedent condition to (for example) “the enjoyment of the highest attainable standard of physical and mental health”.
The applicant went on in the SFIC to identify three International Conventions as being relevant to the question of whether its purposes included a purpose of promoting or protecting human rights. These were the International Covenant on Economic, Social and Cultural Rights (the ICESCR), the ICCPR and the Convention on the Rights of the Child (the CROC).
The applicant said in [88] and [89] of its SFIC that its purposes included a purpose of promoting or protecting human rights because it encourages research into, and advocates for, appropriate limits for, and control of, industrial noise and vibration for workers and others exposed to such emissions, thereby promoting or protecting:
(a)“the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”; and
(b)“the right of a child to the enjoyment of the highest attainable standard of health”; and
(c)“steps to achieve the full realization of the above rights [by] promoting ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’”; and
(d)the “right of everyone (including children) to the protection of the law against arbitrary or unlawful interference with [their] … family or home”, namely, the common law right asserted by the applicant to exist permitting action to be taken in nuisance to prevent unlawful interference with the ability to sleep in, use and enjoy a person’s home free from noise nuisance.[382]
[382] Applicant’s SFIC, at [89].
The applicant also said in its SFIC that the determination of whether it had a purpose of promoting or protecting human rights required the Tribunal to consider “whether the current limits and controls on industrial noise or vibration (including wind turbine noise or vibration) in Australia adequately promote or protect the rights expressed in the Articles” of the Conventions on which it relied, and that it would present evidence to demonstrate that those limits and controls are inadequate.[383]
[383] Ibid, at [87]‑[88].
To that point, it seemed that the applicant had revised its original position of reliance on the seven International Conventions to only three. Ultimately, however, the applicant’s submission (having abandoned Ground of Objection (g)) was confined to Ground of Objection (h) which, for convenience, we will repeat here:
(h)The conclusion that the applicant did not have the purpose of promoting or protecting human rights was wrong because it ignored the established human right to enjoy the highest attainable standard of physical and mental health and the requirement for proper regulation and enforcement of noise pollution policy to protect, maintain and protect that right as provided by:
(i)Article 12 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR); and
(ii)Article 24 of the Convention of the Rights of the Child (the CROC).
Article 12.1 of the ICESCR states:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Article 24.1 of the CROC states:
States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
As can be seen, there is a significant overlap between the requirements of these Articles.
The applicant’s final submissions focused almost entirely on its claim to registration as an Item 13 charity. In relation to its claim to be registered as an Item 7 charity, the applicant said only:
[61][B]ased on the evidence outlined above and for the reasons expressed in the applicant’s [SFIC], it is submitted that the applicant is also entitled to be registered as a charity under the subtype specified in Item 7 of the Table at 25‑5(5) of the ACNC Act, as an entity with a purpose of promoting or protecting human rights.
Consideration
For the purposes of resolving this part of the applicant’s application, we are prepared to assume in its favour, but without addressing in detail, a number of matters concerning the right to health to which Article 12.1 of the ICESCR and Article 24.1 of the CROC refer. First, that the obligations known as the “tri‑partite set of obligations” contained in General Comment No 4 adopted by the Committee on Economic Social and Cultural Rights (the CESCR) are applicable. General Comment No 14 provides:
The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to take measures that prevent third parties from interfering with Article 12 guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realisation of the right to health.
Secondly, as stated in the General Comment, the right to health enshrines a right to “conditions necessary for the realisation of the highest attainable standard of health” and that that right extends to:
the underlying determinants of health, such as access to safe and potable water and adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health‑related education and information, including on sexual and reproductive health. (Emphasis added)
Thirdly, the CESCR has said in relation to Article 12.2(b) of the ICESCR that it encompasses:
the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health. (Emphasis added)
We are willing therefore to proceed on the assumed basis that the right to the “highest attainable standard of physical and mental health” requires States, within their resources, to provide for healthy environmental conditions. Accordingly, there is a sense in which those who advocate for healthy environmental conditions can be said to be promoting or protecting human rights.
The Commissioner submitted, relying on Victorian Women Lawyers[384] to which we referred earlier, that an entity’s purpose (in the context of s 25‑5(5) of the ACNC Act) should be assessed holistically, having regard to the entity’s objects as stated in its Constitution, the history of its formation and the activities which it has undertaken since its formation. We consider this to be the correct approach.
[384] Victorian Women Lawyers’ Association Inc v Commissioner of Taxation [2008] FCA 983; (2008) 170 FCR 318 at [146].
Whereas the determination of an entity’s principal activity requires, predominantly, consideration of the entity’s actual activities, including its day‑to‑day activities, the determination of an entity’s purpose or purposes requires consideration of all the matters from which the purpose or purposes may be inferred. The statement of objects of the entity in its constitution are important in this respect.[385] Naturally, an entity’s actual activities will be relevant to the enquiry, as any constitution must be “read in light of the history of its formation and the activities which the entity has undertaken since”.[386] Note 1 to s 5 of the Charities Act 2013 refers to these matters as it directs:
In determining the purposes of the entity, have regard to the entity’s governing rules, its activities and any other relevant matter.
[385] Ibid.
[386] Ibid.
Neither party suggested that the purpose to which Item 7 refers must be an entity’s sole or dominant purpose. We consider that position to be correct. The cases in which there have been some suggestions that a charitable purpose must be a dominant purpose have concerned different statutory contexts.[387]
[387] See for example, Law Institute of Victoria v Commissioner of State Revenue [2015] VSC 604.
We turn to the particular matters raised by the applicant in its SFIC. We consider that it is neither necessary nor appropriate for the Tribunal, in the discharge of its present function, to consider, let alone determine, whether the currently applicable limits and controls on industrial noise and vibration, including the noise and vibration from wind turbines, are adequate or whether they protect the human rights to which the applicant refers. The assessment of whether the applicant has the requisite purpose does not require such a consideration or determination. Accordingly, we reject the submission contained in [87]‑[88] of the applicant’s SFIC.
We also reject the submission contained in [81]‑[82] of the applicant’s SFIC. It is not necessary to address the individual elements of the syllogism implicit in those paragraphs because we have held that the applicant does not satisfy the requirements for entitlement to registration as an Item 13 charity.
The critical question presently is whether the applicant has “a purpose” of promoting or protecting human rights. Contrary to the applicant’s submissions, that question is not to be resolved in its favour by a finding that a consequence of its activities will be the promotion or protection of human rights. Even if its activities do have that effect, there remains the question of whether the applicant has that as a purpose, in other than a nominal or incidental way. Put slightly differently, the applicant cannot be regarded as having a purpose of promoting or protecting human rights if the effect on human rights which it achieves (assuming that to be so) is only an incidental consequence of its pursuit of its actual purposes.
The applicant’s evidence about its activities in the relevant period which were directly related to the pursuit of human rights was slight. Ms Laurie’s evidence on this topic was as follows:
[99]As time has gone on, the human rights issues have become more and more obvious to ourselves and to low frequency noise sensitised people, who are increasingly asking for our help and assistance to progress the understanding of the related human rights issues and potential breaches.
[100]We first became practically involved in the Human Rights issues when we helped a couple of families with advice when they put in complaints to [AHRC] relating to treatment of individuals in their respective families with disabilities living near proposed industrial noise sources.
…
[103]Mr Tony Edney, a recent addition to the Board of the Waubra Foundation has started helping residents to put together detailed statements that could form the basis for formal complaints to the [AHRC]. Many of the residents who have submitted affidavits to the Waubra Foundation have expressed an interest in approaching the [AHRC] directly because they have [lost] faith in the current regulatory framework and do not expect that their interests and human rights will be protected.
…
[108]Accordingly the Foundation has recently (26th April 2016) amended its constitution’s objects to include (again) specific reference to human rights so that there is no possible confusion about the role of the Foundation in this area. The constitution now has the additional phrase: “to promote and protect human rights where those human rights are, or may be, adversely affected because of industrial sound and vibration”.[388]
[388] Exhibit A7.
We note that the very large volume of documentary material provided by the applicant, whether directly to the Tribunal or via the T‑documents, evidences very little activity directly related to the pursuit of human rights.
The evidence of Ms Laurie quoted above suggests that the focus of the applicant’s activities, insofar as they have concerned the pursuit of human rights, has been in providing assistance to individuals in making complaints to the AHRC. Further, the activities of Mr Edney described by Ms Laurie in [103] of her affidavit appear to be relatively recent and, we infer, have occurred after 1 January 2014. Activity of this kind reflects Object (j) in the Constitution adopted on 18 July 2014.
We note that that object contains no express reference to the ICESCR on which the applicant now relies. Perhaps the more significant consideration is that when in July 2014 the applicant did address the inclusion of an object concerning human rights in its Constitution, it confined that object to the provision of assistance with respect to the preparation of complaints, rather than including an object that it had a purpose of promoting or protecting human rights more generally. There is no basis upon which the Tribunal could infer that the applicant had any wider purpose as at 1 January 2014. On the contrary, Ms Laurie’s evidence tends to confirm the limited nature of the applicant’s interest.
We have the strong impression, and so find, that the promotion or protection of human rights, per se, is not one of the applicant’s purposes, at least in a way which is other than incidental to its actual purposes. The applicant would be pursuing its concerns about the health effects of wind farms even in the absence of the International Conventions and the rights to which they refer. Our impression is that the applicant has fastened upon the rights contained the International Covenants and, in particular, in the ICESCR and the CROC, as a means of bolstering its submissions and advocacy with respect to the health effects of wind farms which it perceives.
In those circumstances, we are not willing to find that the applicant does have a purpose of promoting or protecting human rights of the kind to which Item 7 refers.
SUMMARY
For the reasons set out above, we consider that the applicant was not entitled to be registered as an Item 7 or as an Item 13 entity under s 25‑5 of the ACNC Act. As noted earlier, it was not suggested that the Tribunal should exercise any residual discretion in the applicant’s favour. Accordingly, the Commissioner’s Objection Decision made on 23 June 2015 is affirmed.
DECISION
The decision under review is affirmed.
I certify that the preceding 539 (five hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of The Honourable Justice White, Deputy President and Deputy President K Bean
.......... [Sgd] .....................................
Associate
Dated: 4 December 2017
Dates of hearing: 5 – 8, 12 – 16, 19, 21 and 22 September 2016 Counsel for the Applicant: Mr P Quinn
Nick Xenophon & Co LawyersCounsel for the Respondent: Ms J Batrouney QC
Ms A Lee
Commissioner of Australian Charities and Not-for-profits Commission
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