Women’s Life Centre Inc and Commissioner of the Australian Charities and Not-for-profits Commission (Taxation)
[2021] AATA 500
•12 March 2021
Women’s Life Centre Inc and Commissioner of the Australian Charities and Not-for-profits Commission (Taxation) [2021] AATA 500 (12 March 2021)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2019/6068
Re:Women’s Life Centre Inc
APPLICANT
Commissioner of the Australian Charities and Not-for-profits CommissionAnd
RESPONDENT
DECISION
Tribunal:Deputy President McCabe, Senior Member O’Connell and Member Bygrave
Date:12 March 2021
Place:Melbourne
1.The objection decision is affirmed.
........................................................
Bernard J McCabe, Deputy President
Catchwords
Registration as a public benevolent institution – whereas applicant is registered as a charity under the Australia Charities and Not-for-profits Commission Act 2012 (Cth) – whether applicant can demonstrate it is a public benevolent institution – whether services provided are used by those in need – whether services are directed to those in need as opposed to the general public – sufficient nexus not satisfied – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Charities and Not-for-profits Commission Act 2012 (Cth) (the ACNC Act)
Charities Act 2013 (Cth)
Income Tax Assessment Act 1997 (Cth)
Taxation Administration Act 1953
Cases
Australian Council of Social Service Inc v Commissioner of Pay‑roll Tax (NSW) (1985) 1 NSWLR 567.
Chesterman v Federal Commissioner of Taxation (1926) AC 128
Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute (1990) 90 ATC 4752
Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute (1992) 2 VR 706
Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531
Maclean Shire Council v Nungera Cooperative Society Ltd (1995) 86 LGERA 430
Marriage Guidance Council of Victoria v Commissioner of Pay-roll Tax (Vic) (1990) 90 ATC 4770
Mayor of Manchester v McAdam [1896] AC 500
Perpetual Trustee Co Ltd v Commissioner of Taxation (1931) 45 CLR 224
Re Adoption Privacy Protection Group Incorporated v Commissioner of Taxation (2004) 57 ATR 1240
Re Waubra Foundation and Commissioner of Australian Charities and Not-for-profits Commission [2017] AATA 2424
Royal Australasian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34; (1943) 68 CLR 436
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Charitable organisations play important roles in our civil society. Charities undertake work or advance causes that benefit the public, or some section of it. The state recognises and encourages the work of many charities. That encouragement may include different forms of preferential treatment under taxation laws.
An entity satisfying the definition of ‘charity’ under the Charities Act 2013 (Cth) that wishes to access Federal taxation benefits must be registered under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (the ACNC Act). The ACNC Act establishes a scheme for registering not-for-profit entities that are charities according to their subtype. The 14 different subtypes of charity are set out in s 25-5(5) of the ACNC Act. The range of benefits and concessions available to a charity will be affected by the particular subtype under which the charity is registered.
The Women’s Life Centre Inc (WLC) applied for registration as a charity with three different subtypes of charity. (Section 25-5(4) of the ACNC Act says a charity may be registered as more than one sub-type of charity.) On 20 December 2018, after a good deal of correspondence, an Assistant Commissioner as delegate of the Commissioner of the Australian Charities and Not-for-profits Commission (the ACNC) decided WLC was eligible for registration as a charity with the purpose of advancing health (the subtype mentioned in item 1 of the table in s 25-5(5)) and the purpose of advancing social or public welfare (the subtype mentioned in item 3 of the table in s 25-5(5)). The delegate declined to register WLC as a charity that was a public benevolent institution (the subtype mentioned in item 14 of the table in s 25-5(5)).
That decision has important consequences for WLC. Registration as a charity under items 1 and 3 enables WLC to seek an endorsement from the Commissioner of Taxation that WLC is exempt from the obligation to pay income tax. But WLC wants an additional benefit from the Commissioner of Taxation that is potentially available if it is registered as a public benevolent institution. WLC also seeks endorsement as a deductible gift recipient under s 30-125 of the Income Tax Assessment Act 1997 (Cth) (ITAA97). Endorsement as a deductible gift recipient would enable donors to WLC to obtain tax deductions for gifts they make to WLC pursuant to s 30-15.
WLC objected to the decision dated 20 December 2018 to refuse registration as a charity with the subtype of public benevolent institution. The subsequent objection decision affirming the refusal of registration under that sub-type is dated 29 July 2019. The matter has now come before the Tribunal for review.
Our task is essentially one of characterisation. We have to determine whether, at the relevant time, WLC answered the description of a public benevolent institution. That expression is not defined in the ACNC Act (or in the ITAA 1997, for that matter), but it has a specific and well-understood meaning at common law.
We are not satisfied WLC was a public benevolent institution within the meaning of the ACNC Act at the relevant time. We must therefore affirm the objection decision. We explain our reasons for that conclusion below. We will begin by describing the statutory regime (including the objection process) in more detail and the various cases which are relevant to the characterisation process required under the ACNC Act. We will then explore the evidence and make our findings of fact.
THE OBJECTION PROCESS AND THE SCOPE OF OUR REVIEW
We have already mentioned the original decision by the delegate of the ACNC Commissioner to refuse the applicant’s registration as a public benevolent institution was made on 20 December 2018. The decision-making process thereafter was dictated by Part 7-2 of the ACNC Act which is modelled on Part IVC of the Taxation Administration Act 1953 (the TAA). Part 7-2 of the ACNC Act permits an applicant that is dissatisfied with the ACNC Commissioner’s decision to take objection in accordance with the provisions in Div 160 of that statute. The objection process includes a requirement that the applicant state grounds of objection: s 160-5(c). After deliberating and obtaining any further information that may be required, the Commissioner makes a decision to allow the objection (wholly, or in part) or to disallow the objection: s 160-15. (There are rules which dictate what occurs when the Commissioner does not make a decision on the objection, but they are not relevant here.) A person who is dissatisfied with the Commissioner’s objection decision may apply for review of that decision in the Tribunal, or appeal against the decision in the Federal Court: s 160-25.
An applicant to the Tribunal is restricted to the grounds of objection that were articulated in the objection when it was before the Commissioner, unless the Tribunal orders otherwise: s 165-40(a). The applicant also has the burden of proving the administrative decision – that is, the decision made on 20 December 2018 which prompted the objection – should have been made differently: s 165-40(b). Section 165-40 is the equivalent to s 14ZZK of the TAA, and the cases decided in relation to the provision are likely to be relevant. In summary, those cases confirm an applicant bears the burden of affirmatively establishing the decision under review should have been made differently. As a practical matter, that will require the applicant in this case to establish its true character at the relevant time. Which brings us to the question: what is the relevant time?
There was discussion at the outset of the hearing about the extent of the material that was properly before the Tribunal. WLC originally argued the Tribunal should make its decision having regard to the most up-to-date material. The applicant relied on the High Court’s decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 to argue we should characterise WLC having regard to its current state. The Commissioner said the nature of the objection process and the reference in s 160-25 to the applicant’s burden of proving the administrative decision (i.e. the decision which prompted the objection) wrong means this is a ‘point in time’ enquiry in which we are confined to looking at the applicant at the time of the original decision. On that approach, evidence of events that have occurred subsequently is only relevant to the extent that evidence sheds light on the applicant’s nature and purpose at the time of the original decision.
We note the Tribunal has considered this question on at least one occasion in the past. In Re Waubra Foundation and Commissioner of Australian Charities and Not-for-profits Commission [2017] AATA 2424, White J and Bean DP concluded the objection process in the ACNC Act contemplated the review proceeding with regard to the facts and circumstances as they stood at the time of the Commissioner’s original decision. In this case, the relevant date would be 20 December 2018.
We will focus on the character of the applicant as at 20 December 2018. We do not need to test whether it is universally true that the enquiry is ‘point in time’ since the applicant’s case appeared to focus on the date of the original decision as well. There was certainly no argument that the applicant’s character (including its purpose and its activities to that end) changed after that time. As we understand it, the evidence of events or behaviour which post-dated the original decision was only relied upon to the extent the evidence reflected on the correctness of the decision when it was made. We would add there is nothing in the evidence before us suggesting the conclusion about characterisation might have been different if we had considered the applicant’s character at a different, later date.
THE LEGISLATIVE SCHEME
The question of whether an entity qualifies as a charity capable of registration under the ACNC Act has regard to the definition of ‘charity’ in s 5 of the Charities Act. We do not need to dwell on whether WLC is a ‘charity’ in the relevant sense because both parties accept it is. The only issue is in relation to WLC’s subtype of charity under s 25-5 of the ACNC Act.
We will return to the law surrounding the characterisation process below. We should first explain the taxation implications of the distinction we are being asked to make since the tax implications appear to be an important (if not the only) reason for the application. We have already explained WLC is entitled to an exemption from income tax, and that it seeks gift deductibility status. But how does that occur?
The exemption for ordinary and statutory income is available to entities that satisfy the requirements set out in Div 50 of ITAA97. Section 50-1 says certain types of entity referred to in successive provisions would qualify, although that section notes special conditions might also attach in particular cases. In particular, s 50-47 specifies that an entity which is registrable under the ACNC Act must in fact be registered before the entity qualifies for the exemption. Section 50-5 confirms that a registered charity (i.e. a charity registered under s 25-5 of the ACNC Act) qualifies for the exemption under Div 50 provided it also meets the special conditions referred to in ss 50-50 and 50-52. Section 50-50 imposes a list of requirements on the charity (going to its locus, its compliance with governing rules and its commitment to applying its resources exclusively towards its charitable purposes) which are not in issue here. Section 50-52 says the entity must also be endorsed by the Commissioner of Taxation as exempt under Sub-division 50-B. That subdivision contemplates the Commissioner of Taxation endorsing the registered charity before the charity can access the exemption. That endorsement is available if the registered charity can satisfy the requirements in s 50-110. There is no dispute that WLC has satisfied the requirements in Div 50 and it was endorsed as being exempt from income tax effective 1 July 2017.
An endorsement under Div 50 of the ITAA 1997 deals with an applicant’s liability to pay income tax. It does not address the further objective, which is to permit donors to claim tax deductions in respect of gifts to the entity. Div 30 of the ITAA 1997 recognises certain entities as eligible to receive gifts that qualify for a tax deduction (referred to as ‘deductible gift recipients’). There are various categories of eligible entities, including entities described in the tables in sub-div 30-B. The relevant part of sub-div 30-B for our purposes is s 30-45(1), item 4.1.1 which refers to a ‘registered public benevolent institution’. The term ‘registered public benevolent institution’ is defined as an institution that is:
(a) a registered charity; and
(b) registered under the Australian Charities and Not-for-profits Commission Act 2012 as the subtype of entity mentioned in column 2 of item 14 of the table in subsection 25-5(5) of that Act.
In addition to being registered by the ACNC, eligible entities must be endorsed by the Commissioner of Taxation as a deductible gift recipient under s 30-120 of the ITAA 1997.
Which brings us back to the question: what is a public benevolent institution within the meaning of s 25-5 of the ACNC Act? The expression is not defined in the ITAA 1997, the ACNC Act or the Charities Act, but the concept is well understood in the common law. We must therefore consider the cases that explore the concept below.
The common law meaning of the expression ‘public benevolent institution’
The term public benevolent institution has been described as a compound expression.[1] Even so, each word in the expression has work to do. The reference to ‘public’ suggests the entity must provide its services to the public as a whole or to a sufficient section of the public.[2] The Commissioner accepted WLC is ‘public’ in that sense.
[1] Perpetual Trustee Co Ltd v Federal Commissioner of Taxation (1931) 45 CLR 224, 233.
[2] See Maughan v Federal Commissioner of Taxation (1942) 66 CLR 388, 398.
The word ‘institution’ has been interpreted to mean the entity does not need to have a particular organisational or legal form, although the expression does not include a trust or a ‘fund’.[3] Lord Macnaghten in Mayor of Manchester v McAdam [1896] AC 500 explained the concept as follows:[4]
It is the body (so to speak) called into existence to translate the purpose as conceived in the minds of the founders into a living and active principle.
[3] Stratton v Simpson (1970) 125 CLR 13 per Gibbs J, 158.
[4] Mayor of Manchester v McAdam [1896] AC 500, 511.
The Commissioner accepted WLC, an incorporated association, was an ‘institution’ in the relevant sense.
The only remaining issue in contention therefore is whether the applicant was a public benevolent institution. The leading authority is the High Court’s decision in Perpetual Trustee Co Ltd v Commissioner of Taxation (1931) 45 CLR 224. The proceedings arose out of a bequest made to the Royal Naval House that provided accommodation for naval officers and lower ranks when in Sydney. The applicant had sought an exemption from estate duty under the Estate Duty Assessment Act 1914-1928 (Vic) that was available to particular categories of charitable organisations, including those which answered the description in s 8(5) of a ‘public benevolent institution’. Section 8(5) had been amended following the opinion of the Privy Council in Chesterman v Federal Commissioner of Taxation (1926) AC 128. In Chesterman, the Board overturned the decision of the High Court[5] and held the term charitable did not have its ordinary meaning in the taxing statute but rather a broader, legal meaning derived from the case of Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531. The Board in Pemsel concluded there were four recognised heads of charity: relief of poverty, advancement of education, advancement of religion and other purposes beneficial to the community. The amendment to the Estate Duty Assessment Act made clear that not all charities were entitled to the exemption, and that the term public benevolent institution was used to identify a narrower group of entities. Although the majority in the High Court in Perpetual Trustees accepted the word benevolent might have a wider ordinary meaning, in the context of the taxing statute it was said to mean:
·relief of poverty, sickness, destitution or helplessness (per Starke J);
·relief of poverty, distress, suffering or misfortune (per Dixon J); and
·relief to the poor, sick, aged and the young…where their disability or distress arouses pity (per Evatt J).
[5] Chesterman v Federal Commissioner of Taxation (1932) 32 CLR 362.
The majority judges rejected the notion that providing accommodation to navy personnel was benevolent in the relevant sense. The majority’s approach to the concept of benevolence in the Perpetual Trustee case has been followed in other cases dealing with similar provisions in legislation. We were referred, in particular, to the decision of McGarvie J in Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute (1990) 90 ATC 4752 which considered the expression public benevolent institution in the Pay-roll Tax Act 1971 (Vic). The respondent to the appeal against a decision of the Administrative Appeals Tribunal[6] was the Cairnmillar Institute. The Institute provided ‘hospital clinical and counselling facilities for treating psychological spiritual and social disorders’. The Institute argued it was entitled to an exemption from pay-roll tax because it was a public benevolent institution within the meaning of the relevant provision which granted the exemption. McGarvie J agreed the Institute met the description, explaining that non-financial needs might prompt benevolence. His Honour said:[7]
…it follows from the Perpetual Trustee Co. case that the approach in the present case is to ask whether in the ordinary use of the English language in this community today the Cairnmillar Institute is a public benevolent institution. There was no suggestion by either party before me that in ordinary usage today the essence of a public benevolent institution is different from what it was when the Perpetual Trustee Co. case was decided.
[6] At 4754.
[7] At 4757.
His Honour went on to explain a public benevolent institution was:[8]
…one which provides relief for those who are sick, suffering, helpless or in distress or subject to misfortune or to the disabilities of the aged or the young.
[8] At 4757-8.
We note this reasoning was affirmed by the Victorian Court of Appeal in Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute (1992) 2 VR 706.
A case that was heard at the same time as Cairnmillar Institute was Marriage Guidance Council of Victoria v Commissioner of Pay-roll Tax (Vic) (1990) 90 ATC 4770. The taxpayer in that case was an approved marriage guidance counselling organisation under the Family Law Act 1975 (Cth). It provided counselling services related to all aspects of marriage to members of the public. McGarvie J affirmed the decision of the Tribunal below that the taxpayer was not a public benevolent institution. His Honour explained the marriage counselling provided by the taxpayer in that case was different to the services provided by the Cairnmillar Institute. His Honour acknowledged the services provided by the taxpayer were ‘of great social value and utility, both to the recipients and community generally, [but] it was not work of a public benevolent nature’.[9] McGarvie J concluded:[10]
In my opinion the community does not regard those who are, or have been, in marriage, successful or unsuccessful, as a general category of people with an unfortunate disability or condition arousing compassion. The same conclusion is reached if one confines attention to those of that category who seek counselling from an organisation such as the Council. They do not in my opinion fall directly or by analogy within the descriptions given in the cases of categories for which public benevolent institutions may be organised to provide relief.
[9] At 4770.
[10] At 4775.
The Tribunal has also considered what sort of needs might prompt benevolence in the relevant sense[11] in Re Adoption Privacy Protection Group Incorporated v Commissioner of Taxation (2004) 57 ATR 1240. The taxpayer was a not-for-profit community-based organisation that provided information, referral and support services without charge to members of the public on adoption matters. In particular, it provided counselling to those who experienced unwanted contact between adoptees and birth parents. Deputy President Muller adopted the reasoning in the Marriage Guidance Counsel case and noted that ‘the work done by the taxpayer was work of social value and utility to those who received its services and to the community generally’.[12] DP Muller went on to explain:[13]
The counselling work done by the taxpayer’s members operated to prevent or alleviate the stress and pain of unwanted contact between adoptees and birth parents. However, most of the people who sought the services of the taxpayer, including the 10% of users referred to as ‘trauma’ callers, were normal persons facing difficult situations who for a time, needed and received counselling and guidance. They were not typically people who needed medical treatment for a psychiatric/psychological disorder, disease or abnormality. They would usually get over their shock or trauma and eventually get on with their lives (with or without the assistance of the taxpayer). They were not necessarily helpless or unable to look after themselves.
[11] A number of other cases have been concerned with whether the assistance provided must be direct: see eg Australian Council of Social Service Inc v Commissioner of Pay‑roll Tax(NSW)(1985) 1 NSWLR 567 and Commissioner of Taxation v Hunger Project Australia [2014] FCAFC 69.
[12] Re Adoption Privacy Protection Group Incorporated v Commissioner of Taxation (2004) 57 ATR 1240 at [17].
[13] At 1240.
DP Muller emphasised:[14]
The taxpayer did not specifically operate for the purpose of assisting people who were unable to care for themselves. That is, their target groups were not necessarily poor, sick, aged or young, even if some of their callers might also have fitted into this group.
[14] Ibid.
In those circumstances, DP Muller concluded the taxpayer was not a public benevolent institution.
The respondent in these proceedings also referred us to the decision of the New South Wales Court of Appeal in Australian Council of Social Service Inc v Commissioner of Pay‑roll Tax(NSW)(1985) 1 NSWLR 567. In that case, Priestley JA emphasised the importance of establishing the benevolent activities are directed with some precision towards those who are identified as being in need of benevolence. His Honour explained:[15]
To me, the word "benevolent" in the composite phrase "public benevolent institution" carries with it the idea of benevolence exercised towards persons in need of benevolence, however manifested. Benevolence in this sense seems to me to be quite a different concept from benevolence exercised at large and for the benefit of the community as a whole even if such benevolence results in relief of or reduction in poverty and stress. Thus it seems to me that "public benevolent institution" includes an institution which in a public way conducts itself benevolently towards those who are recognizably in need of benevolence but excludes an institution, which although concerned, in an abstract sense, with the relief of poverty and distress, manifests that concern by promotion of social welfare in the community generally.
[15] At 575.
THE CHARACTERISATION PROCESS
Having developed a sense of what is meant by the expression public benevolent institution, we now turn to the characterisation process in this case. We must examine the evidence and determine whether we are satisfied WLC ought to be regarded as a public benevolent institution at the relevant time. We pause to note the organisation’s character and purpose can be divined from the “objects and practice of the particular institution”, as Rich J explained in Royal Australasian College of Surgeons v Federal Commissioner of Taxation (1943) 68 CLR 436 (at 446). It follows our enquiry focuses on evidence of what was written in WLC’s governing documents, but also evidence about WLC’s activities and any other material that indicates its main character and purpose.
The characterisation process requires that we consider the main purpose because an organisation might have a number of purposes that are ancillary to its main purpose or objective. For example, it might have to engage in fund-raising activities or make investments that will facilitate the achievement of the main purpose of providing benevolent relief. Provided we are satisfied those other purposes are genuinely ancillary to the main purpose of benevolence, that will not be an issue. But if we are not satisfied benevolence relating to an identified need is the main purpose – because one of the supposedly ancillary purposes has effectively become an end in itself, or because there is evidence which suggests another sufficiently important purpose is present – then the applicant may not qualify as a public benevolent institution. As Handley JA explained in Maclean Shire Council v Nungera Co-operative Society Ltd (1994) 84 LGERA 139:[16]
It is well-established that the existence of such independent and collateral objects and powers can result in an institution or association losing some status it would otherwise possess such as being charitable, religious, benevolent or scientific.
[16] At 142.
His Honour went on to observe:[17]
One may readily accept that an institution with an independent object of fostering the cultural values of a particular group would not be a public benevolent institution.
[17] At 143.
Mr Rebikoff, counsel for the ACNC, submitted one must not lose sight of the ultimate point of the enquiry we must make. He reminded us we are engaged in an attempt to characterise the entity.[18] That involves a holistic analysis of all the evidence to divine what the entity stands for, and what it does: see, generally, Waubra Foundation (at [104]) per White J and DP Bean. Mr Rebikoff is right: it may be misleading to focus on the wording of governing documents in isolation from the evidence about what the entity actually did.
[18] Transcript Day 1, 20-1.
In any event, we note the applicant in these proceedings bears an evidentiary onus of establishing the existence and relative importance of the benevolent purpose at the relevant time. It would also be necessary to explain to our satisfaction any evidence suggesting another significant purpose might have been present.
WLC’S CHARACTER: THE EVIDENCE
The governing documents
We now turn to the evidence as to WLC’s character at the time of the original decision. WLC was established in 2013 and was incorporated on 31 October 2016. Its founders included Mrs Peta Evans, an officeholder and Dr Paul Evans, a local general practitioner, who is the current president. Dr Evans is the spouse of Mrs Evans. The WLC received some funding from the local Catholic diocese on establishment and thereafter. It also received donations from Catholic citizens. But WLC has never been an emanation of, or formally affiliated with, the Catholic church.
Mrs Evans explained in her evidence that the constitution of WLC at the time of its incorporation was modelled on the constitution of another unrelated organisation in Western Australia. Mrs Evans said that was done because the founders of WLC were not entirely clear on the direction they expected their organisation to take.
The principal objective of WLC was taken directly from the constitution of the other entity and reproduced in clause 3(1) of the WLC constitution. It said:
3. Objectives
(1) The principle [sic] objective of the organisation is to provide relief of poverty, suffering, distress, misfortune, destitution, misfortune [sic] or helplessness for pregnant women and mothers of all sections of the public irrespective of race, colour or creed.
We assume the clause was drafted having regard to the language used in the Perpetual Trustees case and other authorities.
We note the WLC constitution originally referred to a number of additional objectives that Mrs Evans said were derived from the constitution of the unrelated Western Australian entity. Prior to its amendment, clause 3(2) of the WLC constitution said:
(2) Other objectives include:
(a) to provide counselling for women facing a crisis pregnancy;
(b) to provide information about the reality of human life in the womb and the consequences of abortion on the unborn child and the likely effects on the mother as part of the counselling process;
(c) to provide free pregnancy testing;
(d) to offer moral and material support to women in need during pregnancy and after childbirth;
(e) to offer referral for Napro Technology to encompass women's health related issues;
(f) to offer post abortion counselling both in group therapy or one on one if necessary;
(g) to offer motherhood and baby care classes to assist mothers in the confidence and skills to care for their children;
(h) to engage in education about pregnancy and related life issues;
(i) to provide on an individual or group basis an environment where women and men are able to share any emotional trauma caused to them by having an abortion. The environment will be of a caring, confidential, non-judgemental, self-help nature. Where professional counselling is required referrals will be made to a qualified counsellor, psychologist or psychiatrist who support the objectives of the organisation;
(j) to co-operate with other bodies sharing similar objects;
(k) to seek patronage of eminent persons;
(l) to render personal and confidential services;
(m) to engage in and to provide funds and resources for research and education which will foster and assist to maintain a high quality of services rendered to pregnant women provided that specific funds are available;
(n) to collect and maintain statistics and information to be drawn on by the appropriate organisations;
(o) to educate the community through speaking, writing and distributing literature about the psychological and physical after effects that abortion can cause to women, men and others connected with them;
(p) to raise, to invest and to pay out monies for the above purposes and to establish such funds, investments or endowments for the above purposes as may be required; and,
(q) other related purposes.
The lengthy list of additional objectives might suggest WLC had a different character than that for which it now contends. But the list of additional objectives was pared back in 2017. Following amendment to the constitution, clause 3(2) now provides (and provided at the relevant time):
(2) Other objectives include:
(a) to provide counselling for women facing a crisis pregnancy;
(b) to offer support to women in need during pregnancy and after childbirth; and,
(c) other related purposes.
Mrs Evans explained in her evidence that the objectives were amended following feedback from the ACNC in relation to WLC’s earlier application for registration as a public benevolent institution. (The earlier application for registration was withdrawn.) Mrs Evans acknowledged the amendments to the constitution were made in light of the desire to obtain tax deductibility, but she said the amendments were appropriate in any event because the pre-amendment version of clause 3(2) was overbroad. She said experience had shown the organisation had not pursued many of the objectives in the pre-amendment version of clause 3(2). She said the amended objectives more accurately reflected what the organisation wanted to achieve, and what it was doing at the relevant time and currently.[19]
[19] Transcript Day 1, 33-4.
We have no reason to doubt Mrs Evans’ account of the dual motivation behind the amendments. We note it is essentially consistent with the account provided by her husband, Dr Evans, who is (and was at the relevant time) the president of WLC.
We accept it is appropriate to consider the constitution as it stood at the time of the original decision. The principal objective referred to in clause 3(1) is consistent with the description of a public benevolent institution. The amended version of clause 3(2) describes objectives that are generally consistent with (and ancillary to) the principal objective – although the reference in clause 3(2)(a) to ‘crisis pregnancy’ merits closer attention. While we are mindful of the need to avoid an obsessive focus on particular words in the constitution as we undertake the characterisation process, the expression ‘crisis pregnancy’ assumes some importance in these proceedings. As we shall see that term has been used broadly – and perhaps in ways that suggest it includes activities that go beyond the carefully-drafted principal objective which refers to providing relief from various kinds of need that arouse sympathy and compassion. We will return to that issue below.
WLC’s activities and other evidence going to the organisation’s character
It is also necessary to have regard to what WLC actually does. In its application for registration (document T13), WLC described its activities as follows:
Providing counselling services to women facing a crisis pregnancy, providing free pregnancy testing and moral and material support to women in need both during pregnancy and after childbirth. These activities are aimed at advancing the mental health of pregnant women and new mothers in need.
The application form went on to describe the intended beneficiaries of WLC’s work as:
Pregnant women and mothers in need located primarily in the Albury region who are facing difficulties due to poverty, suffering, distress, misfortune, destitution or helplessness irrespective of race, colour or creed.
Those entries in the application adhere closely to WLC’s stated objectives in its constitution. But we must also look to its activities and other evidence which shed light on its purpose and character.
WLC’s principal witness was Mrs Evans. We have already discussed Mrs Evans’ evidence with respect to the history of the governing documents. Her evidence was central to WLC’s case in other respects because she is one of the founders, a long-term officeholder in the organisation, and the ‘coordinator’ of WLC. As coordinator, she managed the day-to-day functions of WLC, which included attending to its administration and organising for counsellors to attend WLC’s premises. She holds a Diploma of Accounting and gave oral evidence that she has a Diploma of Counselling from the Australian Institute of Professional Counsellors. She personally provided counselling to many of the women who ‘dropped in’ to WLC’s premises in Albury. It appears Mrs Evans also engaged in outreach and fund-raising activities on behalf of WLC and had a role in the operation of a coffee shop which WLC operated from neighbouring premises at the time of the decision under review. We note Mrs Evans regularly reported to the governing body of WLC, and to general meetings. (Minutes of several meetings were included in the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).) For all that, Mrs Evans was a volunteer.
Mrs Evans was questioned during cross-examination about her history of activism in what might broadly be described as the pro-life movement. That history of activism predates the establishment of WLC which now appears to occupy much of her available time. We understand she is a devout Catholic, and she is clearly concerned about abortion. There seems little doubt from her history that she was motivated at least partly by her Catholic faith to establish WLC as a means of delivering support to pregnant women. She explained her objective as follows during her evidence-in-chief:[20]
I've always wanted to start a pregnancy support centre because I recognised that women do find unexpected pregnancy a crisis and so I've wanted to create a space where they could come and access a service, a place, a physical location where it was safe, confidential. An opportunity for women to tell their story, be heard. And also to then be able to really provide… assistance to them.
[20] Transcript Day 1, 32.
Mrs Evans went on to explain how she went about dealing with a woman who approached WLC for assistance:[21]
So my aim with counselling is to listen to the woman firstly and to provide what I would call hope and help. So the main thing is to listen to her concerns, to really try and work out what are the main difficulties that she is facing in this crisis. So for many women obviously they’re there because of the crisis pregnancy but there’s other things that are happening in their life that is causing a lot of pressure. So it may be it could be relationships, it could be, you know, concern about how, you know, where they’re going to live, family pressure, continuing whether it be their work and study life. So there’s a lot of stress involved in this situation.
[21] Ibid.
The repeated use of the word ‘crisis’ in Mrs Evans’ oral and written evidence is significant. While Mrs Evans insisted the services provided by WLC were available to all women (including women who have given birth or who had terminated a pregnancy), she said WLC was primarily directed towards assisting women who experienced a ‘crisis pregnancy’. Mrs Evans provided examples of the crises which might afflict a pregnancy in the course of her evidence-in-chief:[22]
What I've found really is interesting over the last several years of community work is that girls or the women who are accessing the service are increasingly in crisis, so the situations are becoming more difficult. The issues they’re facing are distressing. So, for example, homelessness or dealing without housing is quite a stress. There’s financial concerns. I'm seeing a lot of family breakdown. And also young women who are accessing the service who have had sexual abuse, violence. So, you know, then there is great need and the distress that they’re presenting with is – you know, these are difficult situations.
[22] Ibid 33.
When Mrs Evans was asked to explain the concept of a ‘crisis pregnancy’ in more detail, she answered:[23]
That’s a really good question. So, my understanding - and the way that we’ve advertised or, say, you know, people accessing the help line so it’s clearly unexpected pregnancy. But in reality, what happens for a woman - like, because an unexpected pregnancy can happen to anybody. But a crisis pregnancy is different in that they have determined that the normal resources within their lives are not going to be able to help them. They’re not going to have the support. For some reason they can’t access the help they need to come to a resolution or a decision about what they’re doing. So they’ve then freely contacted us via the phone or walked in, which is often a large part is that people are just coming into our physical counselling space to access our service because they have decided for some reason they need that.
[23] Transcript Day 1, 38.
That answer echoes observations Mrs Evans had made in her statement. She said she discussed with women:[24]
…the difficulties they face continuing the pregnancy, whether it be material or financial, physical, emotional, relationship or lifestyle (such as working or studying). During this process, the client typically explores her options of continuing or terminating the pregnancy. Information about these options are discussed with the client included but not limited to: abortion procedures, possible sequelae of abortion (short and long term), foetal development and pregnancy and the impact of continuing it. Clients are given the opportunity to discuss their concerns freely in a confidential setting, thereby allowing them to evaluate their strengths and weaknesses for them to make an informed decision.
[24] Exhibit 2 at [6].
Mrs Evans certainly gave evidence of practical assistance she had provided to women who presented to WLC when experiencing a crisis pregnancy. In some of those cases, the crisis appeared to be associated with financial need.[25] We were also referred to 3 case studies of pregnant women who experienced various kinds of stress or hardship that were said to generate a crisis. Yet the precise meaning of the ‘crisis pregnancy’ concept remained elusive.
[25] Transcript Day 1, 37-8.
During cross-examination, Mr Rebikoff zeroed in on the concept of the ‘crisis pregnancy’. Mrs Evans was reminded WLC had, through its solicitor, proposed a definition of ‘crisis pregnancy’ as follows:[26]
A crisis pregnancy can be defined as a pregnancy which is neither planned nor desired by the woman concerned and which represents a personal crisis for her.
[26] Transcript Day 1, 51.
Mrs Evans confirmed to Mr Rebikoff that she adopted that definition. Mr Rebikoff pressed Mrs Evans to further articulate and define what she meant. She again referred to examples of women facing various kinds of need that might use the services of WLC, but she agreed WLC did not have any eligibility criteria. Women were effectively able to access WLC and its services if they thought they needed them, as this exchange revealed:[27]
Mr Rebikoff: …So a crisis pregnancy then is any unexpected pregnancy where the woman is considering termination and feels she needs help, even if that help is just advice or information. Is that right?
Mrs Evans: Yes - only dependent if she’s not going to be able to find that support through normal services like, say, a GP or some other person in her life she feels confident in going to.
Mr Rebikoff: Yes, well that’s why I say she feels she needs help?
Mrs Evans: Yes, but she might be able to solve that problem within her own resources.
Mr Rebikoff: And so if a woman called up - one of the examples that I was putting to you earlier - and was considering termination and felt she needed help, would there be any circumstances in which you would turn those women away?
Mrs Evans: Not if they were wanting assistance.
Mr Rebikoff: Because the centre will provide assistance to any woman who is experiencing a crisis pregnancy regardless of their circumstance at the time?
Mrs Evans: Yes, that’s right.
[27] Ibid 52.
This crucial evidence presents two challenges for WLC. First, the evidence suggests the concept of a ‘crisis pregnancy’ is not clearly defined. It clearly encompasses a wide range of situations in which a pregnant woman might experience uncertainty and anxiety – but it is difficult to be more precise than that. It is difficult to be confident all or even most of the women who use the services will experience the sort of unmet need – that is, poverty, distress, suffering and/or misfortune – referred to in Perpetual Trustees and Cairnmillar. Second, even if we assume many women experiencing a ‘crisis pregnancy’ also have an unmet need of the kind referred to in those cases, the services provided by WLC do not appear to be precisely targeted towards providing relief to those individuals, as opposed to pregnant women more generally. The services appear to be available to all women who ask for assistance, including pregnant women who might simply be feeling unease or uncertainty. The lack of targeting would appear to be a problem for the reasons explained by Priestly JA in the Australian Council of Social Services case.
Mrs Evans’ explanation of what constitutes a ‘crisis pregnancy’ is fuzzier than that suggested by Dr Evans. His understanding of the circumstances of the women using WLC’s services is narrower, as was revealed in this exchange:[28]
SM O’Connell: Dr Evans, you were asked a question about the activities of the centre and you referred to normal human experience, I think it was in the context of crisis pregnancies, and perhaps that’s the phrase that’s been used by the Commission (sic) to describe what they might think of as pregnancy generally. You gave examples, you said some clients might have suffered sexual assault or been victims of domestic violence. They wouldn’t be the only types of women who would present at the centre, would they? Would there be a number who have just come because their pregnancy is unexpected, unintended?
Dr Evans: Yes, look, certainly not every single woman who has come through has had a history of those sorts of things but I think looking at the 2020 figures, I would say almost 100 per cent of the women have been victims of sexual abuse which is a fairly damning statistic. In terms of other things like domestic violence that’s probably slightly – well, it’s definitely a lower percentage. And then there are some other populations that are somewhat different. So we have had – not so recently but previously we’ve had migrant women who have found themselves in a real pickle in terms of falling pregnant, having very few options, very limited social and financial support and we’ve helped them through as well. So they’re often ones who are less inclined to have had that history of sexual and domestic violence. Different sorts of needs in that group.
[28] Transcript Day 1, 92-3.
The sub-groups of women identified by Dr Evans in his oral evidence are more likely to fit within the definition of individuals in need in the sense intended in Perpetual Trustees or Cairnmillar. We prefer the evidence of Mrs Evans on this point because she was, as coordinator and a counsellor, in day-to-day contact with the women who came to WLC. Dr Evans may have been the president of WLC but his understanding of the characteristics of the women who attend WLC is not the product of extensive direct experience. That was illustrated in this exchange with the bench during his oral evidence:[29]
SM O’Connell: You also describe yourself or you are the president of the centre and you don’t do any counselling but do you do hours at the centre? Do you do any of the activities?
Dr Evans: I haven’t done anything other than the ultrasounds. So I haven’t had any role in counselling. I have gone in and done the odd ultrasound for a couple who have desired this. I have seen some of the ladies who have presented to the centre for medical issues. So generally what happens is that they’re encouraged to see their own general practitioner with issues but we find that actually quite a lot of these women don’t have a regular general practitioner or a general practitioner at all, in fact, and so I have helped some of them with various things, whether it be mental health treatment or treatment of other physical maladies. But in that context I haven’t indulged so much in – well, I haven’t indulged at all in pregnancy-related counselling. It’s more to do with those other issues.
[29] Dr Evans confirmed his limited involvement with the day-to-day operations under cross-examination: Transcript Day 2, 93.
Dr Evans was asked about some of the other activities of WLC in which he had more direct involvement. He confirmed he provided ultrasound imaging to women on perhaps four or five occasions over the previous three years. The evidence does not suggest the ultrasound service was provided independently: Dr Evans said (and Mrs Evans confirmed) the ultrasound images were for women who had sought counselling and wanted to see the imaging. Dr Evans suggested the imaging was useful information for a woman who was considering whether to proceed with the pregnancy because it promoted informed consent. He went on to say:[30]
Most of the women who had an ultrasound they’d already decided that they were going to continue with the pregnancy.
[30] Transcript Day 2, 98.
Dr Evans ultimately accepted in cross-examination that ultrasound might be used as part of the woman’s decision-making process when she was considering whether to continue with the pregnancy. The following exchange makes the point:[31]
Mr Rebikoff: The idea is that seeing the development in the womb might make the woman think differently about terminating the pregnancy, isn’t it?
Dr Evans: That’s part of informed consent.
[31] Transcript Day 2, 99.
The ACNC says that is evidence of an additional purpose – persuading women not to have an abortion – which is separate from the purpose of meeting a need of the kind referred to in Perpetual Trustees and Cairnmillar. As it happens, we think the evidence of Dr Evans should be treated with caution on this point. While that may have been his understanding of what occurred, he was not regularly involved with the women who used WLC. Mrs Evans is in a much better position to explain how the ultrasound imaging was used. Mrs Evans recalled that most (if not all) of the women who were provided with ultrasounds had already decided to proceed with the pregnancy.
Dr Evans was also asked some questions in cross-examination arising out of a report recording WLC’s activities that was presented to a special general meeting. The report included references to the provision of natural family planning services from WLC’s premises and other services. Dr Evans explained an independent practitioner had used the premises of WLC to provide services up until 2018. Dr Evans was also shown a report Mrs Evans had prepared that recorded the number of women visiting WLC throughout 2016-2019. The report showed:
No of clients
2016
2017
2018
2019
99
88
81
73
Reason for contact
Pregnancy test
34
36
21
10
Crisis counselling and support
18
17
10
10
Pregnancy information
2
1
2
1
Abortion[32]
5
5
6
8
PA[33] and loss counselling
7
4
6
11
NAPRO/Billings[34]
3
9
13
5
Material/financial support
3
11
Outside support: Centrelink; housing; medical care; dom v or legal; GP
5
6
10
4
Ongoing support
13
11
7
9
Ultrasound
6
1
2
11
Contraception
1
1
1
Baby
1
2
1
1
[32] Mrs Evans gave evidence that they did not provide advice about abortion.
[33] Presumably, PA means ‘post abortion’.
[34] Natural family planning methods.
Mr Rebikoff pointed out to Dr Evans that the report said ‘NAPRO/Billings teaching’ was the fourth most common reason for visiting WLC (after ‘pregnancy test’, ‘crisis pregnancy counselling’ and ‘ongoing support’, but ahead of ‘post-abortion’ counselling).[35] Dr Evans conceded the family planning services were not insignificant over 2016-2019 but insisted there was only a handful of consultations recorded in this category in 2019. He added that in any event it was not the main purpose of WLC and the activities had effectively ceased.[36]
[35] Transcript Day 2, 96.
[36] Ibid 96-7.
ACNC argued family planning advice and education was, strictly speaking, unrelated to the purpose of providing crisis pregnancy services (however that concept is defined). It argued the figures provided by WLC confirmed WLC had other purposes that were incompatible with the purposes expected of a public benevolent institution. While the bare statistics contained in the documents provided to the Tribunal and the comments of the witnesses do not clearly establish the relative importance of the different activities carried on by WLC, we accept those figures at least suggest the possibility of a more diverse range of services that could take WLC outside the concept of a public benevolent institution.
Both Dr Evans and Mrs Evans were also asked about the funding arrangements for WLC. We were asked by the respondent to draw an inference about the nature of WLC from the identity and objectives of its donors. Both witnesses acknowledged WLC received some funding and other support from the Catholic Diocese of Wagga Wagga. Dr Evans recalled WLC received a total of around $17,000 from various Catholic entities over several years. The support provided by the various emanations of the Catholic Church was not insignificant, but a good deal of the work of WLC was carried out by unpaid volunteers – most obviously Mrs Evans.
The relevance of evidence about the identity and motivation of donors is unclear. However, evidence of public statements about WLC’s activities in the course of its fund-raising endeavours might be of more immediate assistance in the characterisation process. That brings us to a letter written by Mrs Evans to members of WLC and donors in December 2019. The letter foreshadowed that WLC may have to cease operations. In the letter she said:
Thank you for your generous financial and prayerful support of the Women’s Life Centre in 2019. Our centre has been an ambitious, but a worthwhile apostolate, which grew out of a need to help vulnerable women in a life affirming environment. Over the past six years, we have had hundreds of contacts with women, men and families from our community.
As our culture grows increasingly hostile to life and the ministry of pro-life work, it has become apparent that the time has come to look critically at our centre and whether it is fulfilling its mission in connecting with women vulnerable to abortion.
…
The challenges that need to be met to ensure the future of providing pregnancy support include: connecting to women in a fast paced society where medical abortion is readily and easily available, communicating effectively the positive message of life through social media, as well as considering both the financial and emotional cost of providing comprehensive support system for women, whose lives are becoming increasingly complicated through the brokenness of relationships and family life.
….
This has been a difficult decision because, as faith filled Christians, we believe in the intrinsic value of saving just one unique and unrepeatable life. No monetary value can be put on that life and all the pain, suffering, and sacrifice involved in saving that person is invaluable.
The description of WLC as an ‘apostolate’ and the establishment of WLC in the context of a ‘pro-life’ ministry and the explicit reference to ‘the intrinsic value of saving just one unique and unrepeatable life’ suggest a focus different to that contemplated by the expression public benevolent institution.
Dr Evans sought to downplay the contents of the letter when asked about it in cross-examination. He suggested it was not worded appropriately and did not accurately capture the objectives of WLC. We were also told the letter expressed the personal opinion of Mrs Evans. But we have already pointed out Mrs Evans was especially well-placed to speak about WLC given she was the person most actively involved in its day-to-day operations and she was also one of the founders of WLC. In any event, the letter was written on WLC’s behalf. It was not a personal communication from Mrs Evans. There is no reason to suppose it was written without authority of the board. The letter was part of WLC’s activities that can be considered in characterising the organisation.
We would make one final observation about the evidence before explaining our conclusion. It relates to the qualifications of the counsellors who worked at WLC. Mrs Evans was the principal volunteer. We have already noted she had completed a Diploma of Counselling online through the Australian Institute of Professional Counsellors. Dr Rosemary Farrell, another volunteer counsellor working at WLC since 2014, holds a doctorate in theatre and drama and works as an academic. In her statement, she said she completed a course in group counselling for men and women damaged by child abuse, neglect and pregnancy loss (especially as a consequence of abortion) in 2016. She has also been awarded a certificate qualification in ‘Hope Alive Level I’ counselling specialising in grief and loss.[37] Dr Farrell spoke in her statement (at [4]) of providing counselling through WLC ‘to women, men and couples in need’. That statement is confusing in view of the evidence of Mrs Evans and Dr Evans: the reference to providing services to men and couples does not square with the other evidence, and we were not provided with an explanation of how that evidence could be reconciled with WLC’s case that it was concerned with women experiencing crisis pregnancies. Of more interest, Dr Farrell spoke in her statement about how she would counsel a woman who attended WLC. She explained (at [5]-[6]):
5. In counselling a client facing a crisis, including a crisis pregnancy, I would typically welcome the client respectfully and calmly and offer her (him/them) a quiet, confidential and secure space to tell her (his/their) story to someone who is neutral and interested.
6. As part of my counselling, I listen to the client describe her (his/their) present situation and what brought her (him/them) in today. I make a note of what is described as the social weaknesses and strengths of the client’s situation, what outcome is wanted and what are the possible threats to that desired outcome. I also use these frameworks to assist the client to go deeper in the description of why she (he/they) are in need and how those needs might be met.
[37] The providers of the qualification describe it as ‘Christ-based counselling’:
We mean no disrespect to the volunteer counsellors when we question whether they have adequate qualifications and experience to address the needs of individuals in the manner that Perpetual Trustees and Cairnmillar contemplate. That is not to deny the social worth of the support services they provide: merely to say that providing the level of assistance described in Dr Farrell’s statement goes no further than the sort of emotional support and assistance that was described by McGarvie J in the Marriage Guidance Council case and DP Muller in the Adoption Privacy Protection Group case. We acknowledge Mrs Evans described in her evidence some more concrete examples of direct assistance provided to individual women, but Dr Farrell’s evidence suggests that level of direct support to persons in need was not necessarily the norm. We are not satisfied WLC was geared towards providing relief from poverty, distress, suffering or misfortune. The counsellors were trained instead to provide emotional support and assistance of a more general kind, even if some of the individual women who visited WLC also had basic needs the counsellors would attempt to address.
CONCLUSION
We have already explained it is incumbent on WLC to positively demonstrate that WLC is a public benevolent institution within the meaning of the ACNC Act. We have also explained the meaning of that expression has been established – and to some extent narrowed – through the cases, most obviously in the High Court’s decision in Perpetual Trustees and in subsequent cases which considered what was meant by benevolent.
We accept Mrs Evans and her fellow counsellors like Dr Farrell were genuinely trying to provide support of various kinds to women who were unsure about whether they wanted (or were able) to continue with their pregnancy. But WLC has not established:
(a)precisely how the women who used WLC’s services were in need in the sense described in Perpetual Trustees and Cairnmillar;
(b)how the services were directed to those in need, as opposed to being made available more generally to individuals who were not obviously in need.
We accept some of the women who attended WLC’s premises might have been in need in the relevant sense. We accept those individuals may have benefitted in very practical ways from the well-meaning assistance provided by counsellors like Mrs Evans. The difficulty lies in the ambiguity of the concept of a ‘crisis pregnancy’. While broad, the evidence from the letter to donors in particular suggests the expression is laden with additional values that are not comfortably accommodated within the relatively narrow confines of the public benevolent institution.
In those circumstances, we must affirm the objection decision.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe, Senior Member Anne O’Connell and Member Bygrave:
..............................................
Associate
Dated: 12 March 2021
Date(s) of hearing: 16 – 17 December 2020 Applicant’s Representative: Mr Anthony Krohn Solicitors for the Applicant: Albury Legal Pty Ltd Counsel for the Respondent: Mr Stephen Rebikoff Solicitors for the Respondent: Australian Government Solicitor
1
8
5