Yungngora Association Inc and Shire Of Derby/West Kimberley
[2006] WASAT 378
•22 DECEMBER 2006
YUNGNGORA ASSOCIATION INC and SHIRE OF DERBY/WEST KIMBERLEY [2006] WASAT 378
| Link to Appeal : | [2007] WASCA 233 |
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 378 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:582/2005 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MR P McNAB (MEMBER) | 21/12/06 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | The application for review was allowed and the decision under review was set aside. | ||
| A | |||
| PDF Version |
| Parties: | YUNGNGORA ASSOCIATION INC SHIRE OF DERBY/WEST KIMBERLEY |
Catchwords: | Local Government Rating Exemption- Charities Exclusive use of land- Aboriginal incorporated association representing local Aboriginals pastoral lease Lease held from Crown by Aboriginal incorporated association Lease operated by service company controlled by incorporated association Service company run as an ostensibly profit-making operation Pastoral lease purchased by Commonwealth agency to aid local Aboriginals' social, economic and "traditional" advancement Long history of associated government education and welfare programs in the local area Whether charitable purposes disclosed Whether enforceable charitable trust Membership could include non-Aboriginals Whether sufficiently pubLic in character Construction of objects Objects included pursuit of cultural and self-management ends Objects of Association held consistent with charitable purposes Notorious plight of many Aboriginals in Australia recognised by courts Whether scale of or commercial nature of operation indicated no charitable purpose or indicated non-charitable use of land Land at this point in time held to be used exclusively for charitable purposes |
Legislation: | Associations Incorporation Act 1987 (WA) Land Administration Act 1997 (WA) Local Government Act 1995 (WA), s 6.26, s 6.26(6) Native Title Act 1993 (Cth) |
Case References: | Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197 Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 139 FLR 236 Anaconda Nickel v Western Australia (2000) 165 FLR 116 Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 229 ALR 1 Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1998) 101 LGERA 10 Daniel v State of Western Australia [2003] FCA 666 Northern Land Council v Commissioner of Taxes (NT) (2002) 141 NTR 1 Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108 Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48 Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191 Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191 Willoughby Municipal Council v Winterbottom (1979) 40 LGRA 180 Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120 Maclean Shire Council v Nungera Co-Operative Society Ltd (1995) 86 LGERA 430 Nunawading Shire v Adult Deaf & Dumb Society of Victoria (1921) 29 CLR 98 Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 Salvation Army (Victoria) Property Trust v President, Councillors and Rate-payers of the Shire of Fern Tree Gully (1952) 85 CLR 159 Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315 Western Australia v Ward & Ors (2002) 191 ALR 1 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : YUNGNGORA ASSOCIATION INC and SHIRE OF DERBY/WEST KIMBERLEY [2006] WASAT 378 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MR P McNAB (MEMBER)
- Applicant
AND
SHIRE OF DERBY/WEST KIMBERLEY
Respondent
Catchwords:
Local Government - Rating - Exemption- Charities - Exclusive use of land- Aboriginal incorporated association representing local Aboriginals - pastoral lease - Lease held from Crown by Aboriginal incorporated association - Lease operated by service company controlled by incorporated association - Service company run as an ostensibly profit-making operation - Pastoral lease purchased by Commonwealth agency to aid local Aboriginals' social, economic and "traditional" advancement - Long history of associated government education and welfare programs in the local area - Whether charitable purposes disclosed - Whether enforceable charitable trust - Membership could include non-Aboriginals - Whether sufficiently pubLic in character - Construction of objects
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- Objects included pursuit of cultural and self-management ends - Objects of Association held consistent with charitable purposes - Notorious plight of many Aboriginals in Australia recognised by courts - Whether scale of or commercial nature of operation indicated no charitable purpose or indicated non-charitable use of land - Land at this point in time held to be used exclusively for charitable purposes
Legislation:
Associations Incorporation Act 1987 (WA)
Land Administration Act 1997 (WA)
Local Government Act 1995 (WA), s 6.26, s 6.26(6)
Native Title Act 1993 (Cth)
Result:
The application for review was allowed and the decision under review was set aside.
Category: A
Representation:
Counsel:
Applicant : Mr D Park
Respondent : Ms EM Stevenson
Solicitors:
Applicant : Michael Whyte & Co
Respondent : McLeods
Case(s) referred to in decision(s):
Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197
Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 139 FLR 236
Anaconda Nickel v Western Australia (2000) 165 FLR 116
(Page 3)
Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 229 ALR 1
Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531
Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1998) 101 LGERA 10
Daniel v State of Western Australia [2003] FCA 666
Northern Land Council v Commissioner of Taxes (NT) (2002) 141 NTR 1
Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108
Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48
Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191
Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191
Willoughby Municipal Council v Winterbottom (1979) 40 LGRA 180
Case(s) also cited:
Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120
Maclean Shire Council v Nungera Co-Operative Society Ltd (1995) 86 LGERA 430
Nunawading Shire v Adult Deaf & Dumb Society of Victoria (1921) 29 CLR 98
Ryde Municipal Council v Macquarie University (1978) 139 CLR 633
Salvation Army (Victoria) Property Trust v President, Councillors and Rate-payers of the Shire of Fern Tree Gully (1952) 85 CLR 159
Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315
Western Australia v Ward & Ors (2002) 191 ALR 1
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Summary of Tribunal's decision
1 This review concerned a claim for an exemption from the payment of rates levied by the Shire of Derby/West Kimberley on a pastoral lease (Noonkanbah Station) in the far North West of the State. The exemption from rates was sought on the basis that the whole of the land was being used exclusively for charitable purposes. The Yungnora Association Inc holds the pastoral lease.
2 The applicant (the Yungngora Association Inc) is an organisation representing local Aboriginals, including the Aboriginal elders of the area. While the taxation authorities had recognised the association as a charity for some purposes, the Yungngora Association had paid rates until recently.
3 The history of the pastoral lease showed that its ownership by or on behalf of local Aboriginals (from the mid-1970s until today) was in the context of a variety of programmes to address the social, economic, educational, welfare, cultural and land needs of the Aboriginal owners and residents.
4 A long line of Australian cases had recognised that steps taken towards the amelioration of the vast discrepancy between the living standards and opportunities of Aboriginals compared with other Australians meant that organisations like Yungngora, which pursued these objectives, could be regarded as "charities" in law.
5 Here, the Yungngora Association operated the pastoral lease through a service company that outwardly operated like a commercial entity. Currently, that company ran at a loss. However, it was clear on the material before the Tribunal that the exploitation of the pastoral lease addressed the economic, social and cultural development of the local Aboriginal community, who were deeply involved in decision-making concerning, and otherwise directly benefited from the pastoral lease.
6 The use of most of the land through the operation of the lease also provided training and self-management skills, addressed local unemployment and was linked to the attachment of Aboriginals to land. Subsidised food, in the form of meat from the land, was also provided to the vast majority of local Aboriginal residents. The pursuit of these objects are charitable purposes under Australian law. The Tribunal
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- determined that, seen in its proper context, charitable use of the whole of the land was indicated.
7 The Tribunal also took the view that neither the scale of the activities (that is, the size of the land under lease) nor the status of the land as that held under a pastoral lease, were necessarily determinative of the matter as against the applicant. What was clear was that the dominant charitable use of the land was not compromised by any collateral or non-charitable use of the land. There was, for example, no evidence to indicate that a separate profit-making exercise in itself was the true purpose behind the use and exploitation of the land. The Tribunal said:
"The returning of land to the traditional owners - a very poor group by Australian standards - represented in large degree by the applicant holding and exploiting the extant pastoral lease is the key to the proper characterisation of the true purpose of the pastoral operation."
8 The Tribunal held that the use of the land for charitable purposes was "exclusive" use.
9 However, the Tribunal cautioned that these matters "were not set in stone". If the nature of the activities on the land relevantly changed, or if the affected Aboriginals ceased to be relevantly in need then the exemption might cease to be available. But, on the material presently available to the Tribunal this was not the case.
10 The Tribunal therefore upheld the review and set aside the decision under review.
The issue
11 The question in these proceedings is whether land comprising the Noonkanbah pastoral station, being land leased by the applicant from the Crown, is exempt from rates on and from the rating period commencing in 2004, on the basis that it is used exclusively for a charitable purpose, namely in relation to the benefit of certain Aboriginals resident upon or associated with the subject land.
12 It appears that, until 2004 the applicant had paid rates in relation to the subject land.
(Page 6)
The legislative framework
13 Section 6.26 of the Local Government Act 1995 (WA) (the Act) provides, so far as is relevant, as follows (emphasis added):
"6.26. Rateable land
(1) Except as provided in this section all land within a district is rateable land.
(2) The following land is not rateable land
(a) land which is the property of the Crown and
(i) is being used or held for a public purpose; … [or]
(g) land used exclusively for charitable purposes; …
"[12] Section 6.39(1) of the Act provides that, as soon as practicable after a local government has resolved to impose rates in a financial year, it is to ensure that a rate record is compiled, for that financial year, of all rateable land in its district. Section 6.41(1) requires a local government to give the owner of rateable land a rate notice. Section 6.44 obligates the owner of land on which a rate has been imposed to pay the rate to the local government.
[13] Section 6.76(1) of the Act confers a right on a person to lodge an objection with the local government in relation to the rate record on certain grounds, including that it contains an error in that land is not rateable land. Section 6.76(5) states
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- that the local government may either disallow an objection or allow it, in whole or in part. Section 6.77 provides that any person who is dissatisfied with the decision of a local government on an objection made by that person under s 6.76, may apply to the State Administrative Tribunal for a review of the decision."
15 It may be observed, conveniently at this point, that although the relevant land (described more formally below) is held under lease from the Crown, neither that fact nor the issue of "public purpose" or "occasional" use (including use of a "public nature") contemplated by s 6.26(6) arises in this review.
Facts
16 The parties have agreed upon a statement of facts. That document, edited for ease of reference, is as follows:
1. The land the subject of the claim for rates exemption is Pastoral Lease 3114/576 ("the Land").
2. The Land covers an area of 169,791 hectares and is held by the applicant, namely, the Yungngora Association Inc ("Yungngora").
3. The Land was transferred to Yungngora from the Noonkanbah Pastoral Company Pty Ltd in 1986.
4. The Land is subject to the provisions of the Land Administration Act 1997 (WA) in regard to pastoral leases.
5. The Land adjoins a 260 hectare parcel of land held by Yungngora in freehold.
6. Yungngora is incorporated under the Associations Incorporation Act 1987 (WA), and is a non-profit body governed by a written constitution.
7. Yungngora has been endorsed as an income tax exempt charitable entity and as a deductible gift recipient for the purposes of income tax assessment, as per certificates from the Commissioner of Taxation.
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- 8. Yungngora has constructed facilities on a parcel of land that straddles the boundary between the freehold land and the Land. Those facilities are 43 houses, a primary school, a high school, a community store and facilities for a TAFE program and diabetic care clinic.
9. Approximately 350 people live in the community.
10. Apart from the area of the Land that contains community facilities, the Land contains a run down original homestead, a machinery shed, two sets of cattle yards, some roads and dams.
11. There is a 75 km access road to the community and the Land.
12. The Land is operated as a pastoral enterprise by Noonkanbah Rural Enterprises Pty Ltd (ACN 093 276 772) (NRE), with approximately 3500 head of beef cattle.
13. NRE directly employs 10 community members and an additional eight to 10 community members during mustering. These employees are funded through the Commonwealth Development Employment Program (CDEP), with a top up from station income.
14. NRE engages, by contract, a Department of Agriculture adviser, financial and audit advice and a helicopter mustering assistance.
15. NRE provides training to its employees. (Information on the kind of training provided and its outcomes is identified in a document known as the Noonkanbah and Milajidi Training and Employment Outcomes 2004.)
16. NRE runs at a loss, although the aim of its five-year business plan is to provide a sustainable pastoral enterprise.
17. NRE supports the community store by being its largest customer (approximately $80 000 of expenditure per year) and sources its supplies through the store for this purpose, even though it could purchase items more cheaply elsewhere.
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- 18. NRE provides meat to community members (approximately 250 to 300 head per annum, at an estimated value of $100 000). Recipients of CDEP funds at the community pay a levy of $5 per week for this meat, amounting to approximately $20 000 per annum.
19. NRE carries out approximately $20 000 of road grading per annum on the Land.
20. Community members use roads on the Land to access areas of the Land for non-pastoral enterprise purposes.
21. Approximately five light vehicles are owned by the pastoral enterprise. The vehicles are home garaged by employees of the NRE and are used by community members. It is estimated that 30% of station fuel and vehicle maintenance costs are attributable to pastoral enterprise work, and 70% to community use valued at approximately $63 000.
22. Over the past 5 years, the NRE has contributed:
• $4727 towards the local diabetes treatment program;
• $10 000 towards the expenses of native title claims for the community (see below); and
• $40 000 towards feasibility studies for other users of the land for the benefit of the community.
1. The directors of NRE are Aboriginals, namely "elders of the Yungngora community". The company is a management or service company that owns no assets. The directors of it appear to be common with the office-bearers of Yungngora. For example, Mr Dickey Cox is, according to his statement which has been filed, the chair of both bodies corporate.
2. The gross income from cattle sales is substantial ($403 192 in NRE's fiscal 2005). However, NRE, at fiscal 2005, made an operating loss of $120 022. Any
- surplus that is made is, however, destined for Yungngora's use (see the "objects" listed below).
- 3. Almost all of the members of Yungngora are or will be Aboriginal persons normally resident in the Yungngora Community's boundaries: see cl 5 of the Constitution of the Yungngora Association Inc (the constating instrument of the applicant).
4. Yungngora's constating instrument's statement of objects is as follows:
"3. The objects of the Association are:
a) to support the development of the Community in all ways,
b) to help to bring about the self-support of the Community by the development of economic projects and industries,
c) to hold shares in any company formed to carry out the objects of the Association,
d) to support education, job training, health services, work and housing for the Community,
e) to help and encourage the Community to manage its affairs upon its own lands,
f) to help and encourage the Community to keep and renew its traditional culture,
g) to help to build trust and friendship between the Community and other people, and
h) to receive and spend grants of money from the Government of the State or of the Commonwealth."
The "Community" is not relevantly defined but presumably has reference to the mainly Aboriginal
- persons in the Yungngora community and within its boundaries.
- 5. The relevant recent history of the Yungngora community dates from around 1976 when the Commonwealth Aboriginal Land Fund purchased Noonkanbah pastoral station with the express object of "allow[ing] the traditional people of Noonkanbah to return to their homelands". Various employment and welfare programs have run in tandem with this aim.
6. The subject land is and has been since 1998 included in the Noonkanbah native title claim under the Native Title Act 1993 (Cth). That claim appears to have been settled, indicating, that the whole of the pastoral lease is, or can be, used for traditional purposes by Aboriginal members of the applicant.
7. Noonkanbah station's formal plan (as evidenced in the various documents supplied to us) is "to guide [the local community] towards developing a sustainable community owned pastoral enterprise, that will provide, opportunities for training, skill development, gainful employment and in turn improve the standard of living for the community[,] people and youth of [the] Yungngora community [which, in addition] will improve community morale and develop a sense of self determination and self sufficiency": statement of Mr Kim Carter, an agriculture adviser seconded from the Department of Agriculture.
8. The applicant had received a Final Notice to pay rates in the sum of $14905.91 due to the Shire no later than 5 November 2004.
18 Thus, as appears from all of the above, the current ownership and use of the subject land is informed by the fact that over some decades successive State, but more particularly Commonwealth, governments and their agencies have to varying degrees (and with varying degrees of cooperation with each other) facilitated and funded - both directly and indirectly - a policy objective of building up the collective economic, social and "traditional" position of Aboriginals associated with the subject land.
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19 The further fact that such policy objectives are in part manifested (or perhaps even mandated) in "business" enterprises and in the associated contractual and corporate arrangements referred to above, does not detract from this clearly established history.
20 Indeed, it seems clear that every relevant fact concerning the use of the subject land can be ultimately derived from or is connected to the broad policy objectives just identified, objectives also embraced by the Yungngora community itself. Likewise, the motivations of those pursuing such policy objectives cannot be entirely ignored: it includes the recognition and attempted amelioration of what may be characterised as the 'notorious plight of Aboriginal people' (Mildren J summarising, with approval, the findings of Nader J in Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197, in Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 139 FLR 236, at 252; see also the extracts referred to below from Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108).
21 Thus, any findings as regards either the use of or the purposes of the use of the land in this review must be similarly informed, and these matters will consequently form an important part of the factual matrix in this case. This is not to say, of course, that any of this necessarily determines the matter either way. Nonetheless, such matters are hardly irrelevant to the questions to be determined.
Findings
22 The question posed in these proceedings is whether the land described above, having regard to the facts found by the Tribunal, "is land used exclusively for charitable purposes", thus leading to an exemption from a classification as rateable land. Thus, like Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191 (at [91]), two issues present themselves for resolution:
1. whether the "land [is] used exclusively" and, if so,
2. whether it is used for "charitable purposes".
23 In Uniting Church Homes (Inc), at [91], the Tribunal observed that "[n]either of these terms is relevantly defined in the Act". Further, at [92], it was said that "[c]onvenience, as much as anything, dictates that the process of resolving these issues ought to commence with an enquiry into the applicants' alleged 'charitable purposes' in relation to the land", with the Tribunal going on to caution that "such a neat dichotomy [between use
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- and exclusivity of use] has an element of abstractedness about it; it remains, however, a convenient way to consider the principal question posed." And, like Uniting Church Homes, the main element of the respondent's case, as we shall see, is apparently directed more towards the question of the hurdle of exclusivity than charitable use: see [92].
24 We turn to the first issue of whether the subject land is used for "charitable purposes".
25 Recently, the High Court of Australia, in Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 229 ALR 1, has confirmed that the law of Australia in relation to charities remains controlled by Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531. Gleeson CJ, Heydon and Crennan JJ said, at [18], fn 6:
"The tribunal [below], the four judges of the Supreme Court of Victoria, and counsel in their arguments in this court proceeded upon the assumption that 'charitable' in [the statute under consideration] was used by the Victorian Parliament in its technical legal sense - that is, as defined by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531; [1891-4] All ER Rep 28 by reference to the spirit and intendment of the preamble to the Statute of Charitable Uses Act 1601 (UK). That assumption reflected the general rule that, the word 'charitable' being a word that has a technical legal meaning, when it is used in a statute it should be understood in its legal sense unless a contrary intention appears. It was not suggested that a contrary intention appears in the statute presently under consideration. It is not easy to see a basis upon which such a suggestion might have been made with any degree of plausibility. The general rule just mentioned has been accepted as the law in this country at least since the decision of the Privy Council in Chesterman v FCT (1925) 37 CLR 317; [1926] AC 128; (1925) 32 ALR 9. The word is commonly used in statutes. It is reasonable to assume that parliamentary counsel, taxpayers, revenue authorities, settlors, testators and others have acted on the faith of an understanding that the general rule applies. … There is no occasion to call the rule in question …"
- See also Kirby J at [118] and Callinan J at [169] accepting the authority of Pemsel.
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26 Some of the leading authorities, albeit in the context of charitable relief of the aged, but including Pemsel, are briefly discussed in Uniting Church Homes (Inc) and City of Stirling at [93] - [95] and it is unnecessary to repeat that discussion here.
27 What is of relevance is that these principles, ultimately derived from Pemsel, have been applied by the courts of this country, in relation to both Aboriginal organisations and their activities, to produce a clear line of authority in reported cases which suggests, on the face of it, that the activities of the applicant should be considered as charitable. For example, it has been held that:
1. Land leased by certain Aboriginal-controlled associations and used or occupied for the purposes of "town camps" providing, in effect, housing for Aboriginal people in Alice Springs, was land used or occupied for the purposes of a "charity": Alice Springs Town Council v Mpweteyerre Aboriginal Corp. (1997) 139 FLR 236 (NTCA).
2. Similarly, land used by a community advancement society for Aboriginal housing and employment projects was land used or occupied for the purposes of a "public charity": Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48 (Stein J).
3. A Commonwealth-controlled company which provided accommodation for Aboriginals, including charging a fee therefor, was using or occupying its land for the purposes of a "public charity": Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197 (Nader J).
28 The existence of such cases, no doubt explains the determinations made by the Commissioner of Taxation, referred to above in the agreed statement of facts, to the effect that the applicant has charitable status for some purposes.
29 On the other hand, in Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1998) 101 LGERA 10, Bignold J held that a government-funded Aboriginal body, constituted as a company, with its main activities "being the provision of welfare services and low cost rental accommodation", was not exempt from the payment of rates, because the company's objects clause was (in its unamended form which
(Page 15)
- governed the appeal) "incapable of an interpretation that yield[ed] a dominant charitable or benevolent purpose".
30 The question of objects will be returned to below.
31 Important to this review is Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108. In that case, Wheeler J (as Her Honour then was) said (at [19] - [24], emphasis added):
"So far as purposes directed towards the advancement of Aboriginal people are concerned, purposes of this kind, and institutions directed to the advancement of Aboriginal people, have been considered in a long line of cases. In the case of In re Mathew [1951] VLR 226, O'Bryan J considered a trust to be used by the trustee 'in his discretion for the benefit of the Australian Aborigines'. His Honour said, at 232, that:
'Australian Aborigines are notoriously in this community a class which, generally speaking, is in need of protection and assistance'.
His Honour referred to legislation which appeared to recognise the special needs of Aboriginal people, and continued that:
'Such a class, in my opinion, is analogous to those mentioned in this statute [Statute of Charitable Uses Act 1601 (UK)] [ … from which the present legal understanding of the expression "charitable" is derived] as "the aged, impotent and poor people; support, aid and help of people decayed; education and preferment of orphans".'
His Honour therefore held that as the trust was for the benefit of a class which itself was within the ambit of the statute, it was necessarily a valid charitable trust.
Many cases since that decision have also taken judicial notice of the fact that, unfortunately, Aboriginal people have continued to be, as a class, 'notoriously in need of protection and assistance'. As a class, they are, by the standards of the community as a whole, generally poor, much more likely to be in ill health, and likely to require special provision to be made for their education. Cases of this kind include: Re Bryning [1976] VR 100; Aboriginal Hostels Ltd v Darwin City Council
(Page 16)
- (1985) 75 FLR ; Tangentyere Council Incorporated v Commissioner of Taxes (1990) 99 FLR 363; Mpweteyerre Aboriginal Corporation v Alice Springs Town Council (1994), unreported SCt of NT, (Kearney J), 14 May 1996 and on appeal (1997) 115 NTR 25 [Alice Springs Town Council v Mpweteyerre Aboriginal Corp (1997) 139 FLR 236]; MacLean Shire Council v Nungera Co-operative Society Ltd (1995) 86 LGERA 430; Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120; Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48; and Gumbangerrii Aboriginal Corporation v Nambucca Council (1996) 131 FLR 115.
In view of the many cases, some of them very recent, in which this issue has been discussed, I do not think it necessary for me to refer either to the readily available statistical information or to the legislative and administrative framework established at both State and Federal Government level, which indicates that the proposition enunciated by O'Bryan J remains true today."
[However, Her Honour did then go on to consider the report of the taskforce on Aboriginal Social Justice to the Government of Western Australia in April 1994 and the Aboriginal Affairs Planning Authority document "Regional Planning Profiles" of November 1994. Her Honour continued, at [24], as follows.]
"Counsel for the plaintiff urged that it would be wrong, and even patronising, to assume that all Aboriginal people were in need of protection and advancement. However, to the extent that the proposition extracted from the cases to which I have referred is accepted as a broad generalisation, it seems to me to be no more than a reflection of an unfortunate fact arising from the interaction of many complex factors over a long period of time. It would be consistent with those cases to find that a purpose of advancing some particular group of Aboriginal persons might fall outside the scope of a charity; as I understand it, the defendant conceded this proposition and suggested, for example, that the purpose of advancing well paid Aboriginal football players would at least require close scrutiny. However, no such exception arises here."
32 Her Honour examined the objects of the association in that case concluding, at [29], that "[s]o far as the objects of the defendant shed light
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- upon the use and occupation of the Land, it appears to me that the majority of the objects are of a charitable nature."
33 A comparison between the objects of the applicant here and those of the association in Bindibindi, shows that they are broadly similar, except that the first listed object of the association in Bindibindi at [27] is perhaps more relevantly (or expressly) charitable in nature. The objects were:
"(a) to further the advancement and well being of Aboriginal people in Australia generally, and on the Bindibindi Housing Development of Onslow, Western Australia in particular;
(b) to help and encourage its members to keep and renew their traditional culture;
(c) to help bring about the self support of its members by the development of economic projects and industries;
(d) to support education, job training, health services, work and housing for its members;
(e) to encourage its members to manage their own affairs upon their own land;
(f) to encourage and promote sporting, social and recreational activity amongst Aboriginal people;
(g) to participate with other Aboriginal associations in projects for their mutual benefit; and
(h) to receive and spend grants of money from the Government of the Commonwealth or of the State or from other sources."
34 In Bindibindi Her Honour said, at [29] - [30]:
"Paragraph (a) echoes the terms of the trust the subject of In re Mathew [above]. That seems to me to be the overriding purpose, and it is at least arguable that the remaining paragraphs are the means by which that purpose is to be advanced. I do not think it is necessary to call evidence to demonstrate that poverty, ill health and helplessness are relieved by encouraging maintenance of traditional culture, self help and the
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- development of self management skills to which pars (b)-(e) are directed. So far as par (f) is concerned, this seems to be a purpose expressly deemed by the Charitable Trusts Act 1962 (WA) as charitable in circumstances such as these (s 5).
However, there are objects which may be carried out by the defendant which may not necessarily be charitable. Paragraphs (g) and (h), if broadly read, may encompass non-charitable purposes, at least if one does not read them as necessarily subordinate to (a) and as objects to the extent only that they serve the purpose of par (a)."
35 The effect of Her Honour's decision was however, as we understand it, to read the objects in a way which did not invalidate the charitable intent of object (a), thus presumably employing the maxim that such a body's constitution, "like any other written instrument, should be read as a whole and if possible, apparent inconsistencies should be reconciled.": Maclean Shire Council v Nungera Co-Operative Society Ltd (1995) 86 LGERA 430, per Handley JA at 434.
36 In Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48 Stein J (as he then was) noted that in interpreting such objects clauses "substance should prevail over form" (at 57). His Honour went on to observe that:
"As with all the other objects, the aim is to benefit the Aboriginal community. The benefit does not stem from the use of any particular words but from the overall purpose of the [community advancement] Society."
37 It is true that the Aboriginal community therein referred to by Stein J was the Aboriginal community at large, but the principle must, we think, remain the same in respect of groups of Aboriginal persons evidently still in need as regards such matters as income support, health, housing and education. Indeed, in Toomelah Co-operative Ltd, as appears from the extract set out immediately below, the membership of the organisation and benefits available were confined to Aboriginals of a specified class, notwithstanding a reference elsewhere in the objects to the "Aboriginal community in general".
38 In our view, the applicant's object of 'support [for] the development of the [Yungngora] Community in all ways', when read in the context of the evident and overall purpose of the applicant, which is to relevantly
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- benefit the local Yungngora Aboriginal community found at Noonkanbah, is "charitable" in nature.
39 Courts in this area have also paid particular attention to the "public character" of a charity. In Toomelah Co-operative Ltd v Moree Plains Shire Council Stein J said, at 55:
" '[A] trust in order to be charitable must be of a public character': per Lord Simonds in [Williams' Trustees v Inland Revenue Commissioners [1947] AC 447] (at 457). This question was dealt with by Nader J in Aboriginal Hostelsand I adopt his Honour's finding since it is relevant to the present case. At 209 … Nader J stated that:
'The mere fact that only a limited number of persons can benefit from the trust does not preclude the purpose from being a public one. The potential beneficiaries must not, however, be negligible numerically. The character that marks the potential beneficiary must not be a relationship to a particular person or persons such as one of blood or employment.' ...
In the present case, membership of the Society is governed by cl 13 which states (in part) that 'every member shall (i) be a person of Aboriginal or Islander descent or the spouse of such a person; and (ii) live at Toomelah, or have customary or kinship ties with Toomelah or the former Euraba Aboriginal community'. As noted earlier, the objects set out in r 5 are expressed to be for the use, benefit or development of the society, its members or the Aboriginal community in general. [Counsel for the applicant] submits, and I accept, that any member of the Aboriginal community of Toomelah and Boggabilla is eligible for the benefits given by the applicant. There can be no doubt in the present case that the class of persons who may benefit from the trust satisfies the requirement that a charitable trust be of a public character.
[Counsel for the respondent] submits that the class of public on whom the Society's funds is expended is not limited to the needy. I reject his submission on an analysis of the evidence and, further, note the words of Nader J in Aboriginal Hostels where he states [at 212; 428-429]:
- 'The fact that a number of individuals not actually in need of assistance may succeed in taking advantage of facilities intended for the great majority of the class does not detract from the charitable nature of purposes otherwise charitable.' …"
40 So too, Handley JA in Maclean Shire Council v Nungera Co-Operative Society Ltd where his Honour said, at 435 (emphasis added):
"[A] submission was [made] based on the fact that three Aboriginals in full or part time employment 'nevertheless had homes' and thus the Society, it was said, was 'providing for people who are not needy' or 'not necessarily needy'. … Whether particular persons are in need is a question of fact. There is no suggestion that the three Aboriginals in outside employment were well off by ordinary Australian standards. Given his Honour's acceptance of [certain evidence below] I can see no error of law or fact in the finding that they were in need. Indeed it appears to me, with respect, to be correct. It was not shown that they could have purchased or even rented other housing of the same standard in the area."
41 Unlike Bindibindi, here the applicant's constating instrument appears to open up the possibility of non-Aboriginal members of the applicant.
42 In Bindibindi Wheeler J dealt with the issues of "public" character and membership at [31] and [34] as follows:
"Further, to the extent that the objects focus upon members of the defendant (par (b) to par (e)) the question is raised whether there is a sufficient 'public' benefit. It appears from the Case Stated that membership of the defendant is potentially open to roughly one quarter of the adult Aboriginal population of [that] town. The ratio of adults to children in Onslow is not in evidence, but the total population is approximately 850 'persons'. (It is not quite clear from the materials whether these are adult persons or all inhabitants). In any event, it seems clear that one quarter of the adult Aboriginal population is a significant number of people and, assuming that the benefits of membership of the defendant are likely to improve the living standards of children of members, the number potentially benefited is clearly sufficiently large to be regarded as a
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- 'significant section of the community' and, thus, to give the object of benefiting those people a public character. …
As in Alice Springs Town Council v Mpweteyerre Aboriginal Corporation [(1997) 139 FLR 236], the evidence suggests that those benefited by the defendant form a significant proportion of the local community and that the benefit therefore is of a sufficiently 'public' nature to be considered charitable."
43 Likewise, the evidence here suggests that a very large proportion of the Yungngora Aboriginal community directly benefits from the use of the land undertaken by the applicant. To take one very clear example, it was an agreed fact that somewhere between 250 to 300 members of the local community a year (out of a community population of some 350 people, the vast majority of who are Aboriginal), receive significantly subsidised meat provided by their service company (NRE): see agreed facts 9 and 18. Such a pastoral activity, given the scale of the business, necessarily involves the potential use of nearly all of the land held under lease. The need for such a service for Aboriginal members of the community is self-evident having regard to the material referred to above, particularly on the relative position of Aboriginals living in remote areas in relation to other parts of Australian society. They are not, to adapt the words of Handley JA, "well off by ordinary Australian standards".
44 Wheeler J did not consider whether there was a need for an express finding that an "enforceable [charitable] trust" must exist. To the extent that, if any, such a requirement arises in relation to a finding regarding charitable use, we are content to adopt the reasoning of Stein J in Toomelah Co-operative Ltd, at 54-55, which would consequently lead to a finding that "a constructive trust is created", particularly having regard to cl 38 of the Yungngora Association's constating instrument (dealing with winding up) and its express reference to "[distribution] to another institution or association incorporated under the Act or for charitable purposes", and the other limitations on the use of its funds (see, for example, cl 27).
45 Nothing that was said in Daniel v State of Western Australia [2003] FCA 666, at [598] - [615] (RD Nicholson J), is necessarily inconsistent with this position, having regard to the findings that we have made and the different factual and statutory matrix in that case. In any event, there is Anaconda Nickel v Western Australia (2000) 165 FLR 116 (NTTA) where it was said, at [186]: "In the Tribunal's view the evidence is sufficient to establish that Sturic Pty Ltd holds the Glenorn pastoral lease
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- as a charitable trustee for the members of the three Aboriginal corporations."
46 To the extent that it may be suggested that the pursuit of land rights, traditional culture, self-determination ("manag[ing] its own affairs upon its own lands; "keep[ing] and renew[ing] its traditional culture"; and see agreed fact 22) are not charitable purposes we also respectfully adopt the reasoning of Stein J in Toomelah Co-operative Ltd at 57-59, to reject any such contentions. (Stein J was expressly followed on this point by Thomas J in the Court of Appeal in Northern Land Council v Commissioner of Taxes (NT) (2002) 141 NTR 1, at [75] (CA), albeit a "public benevolent institution" exemption case.)
Conclusions on "charitable use"
47 Having regard to the agreed facts and the other matters discussed above we conclude that the land is here being used as part of a general scheme to improve the economic position, social condition and traditional ties for the benefit of relevant Aboriginals, Aboriginals who, as Wheeler J observes, "are, by the standards of the community as a whole, generally poor, much more likely to be in ill health, and [be] likely to require special provision to be made for their education". Such a general scheme is consistent with the charitable objects of the applicant, objects which are also directed to ameliorating those concerns.
48 But is this a relevantly "charitable" use of the land? We think, principally applying Bindibindi, that the answer is Yes.
49 It is true that the association's operations in Bindibindi were only in respect of just over three hectares of land vested in it under statute for the "Use and Benefit of Aboriginal Inhabitants", land that was zoned residential and located "within the town site boundary of the town of Onslow": at [2] and [26]. On that reserve, the association conducted activities summarised by Her Honour as follows, at [35]:
" … The Land is used for the provision of low cost rental housing for economically disadvantaged Aboriginal people. The accommodation is rented at rates which appear to be significantly below those charged by Homeswest. Rent is used to pay bills, cover office costs and generally further the objects of the defendant, but not in order to generate profit. Rent arrears are not actively sought from those who owe rent. A number of projects have been undertaken upon the Land in order to improve living conditions and in order to keep people
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- occupied, to stop them drinking too much alcohol, to create self respect and (theoretically) to generate income to further the objects of the defendant. Although the constitution of the defendant requires that profits from projects must be used for furthering the objects of the defendant, the general recollection of the current residents is that none of the businesses undertaken have in fact been profitable."
50 Here, the applicant holds a pastoral lease of nearly 170,000 hectares and, amongst other things, conducts through another corporation a beef cattle business on that land. (However, various community, education and health facilities are also partly built on the subject land and adjoining land. To the extent that such facilities are not in themselves charitable, they are clearly incidental to any principal charitable use.)
51 We agree that that pastoral operation is dominant in the affairs of the applicant. The scale of that operation is significant, making potential use of most of the land, and it has an undeniable commercial feel, particularly as regards its aim of making a "profit" in due course. Nevertheless, the purpose of the operation at this point of time, apart from being a source supplying subsidised meat (see above) and being obviously connected with the return and exploitation of traditional lands, is clearly undertaken "to assist Aboriginals to become economically independent and to provide employment opportunities": Northern Land Council v Commissioner of Taxes (NT) (2002) 141 NTR 1, at [38], per Mildren J (Martin CJ concurring).
52 Although Mildren J was addressing the position of a statutory body charged with assisting Aboriginals with "carry[ing] out commercial activities (including … agricultural activities)", in the context of whether that body was a public benevolent institution (it was held that it was), such assistance and opportunities may also be charitable in nature if they are of relevant benefit to Aboriginals. Further, such activities assist the pursuit of land rights, the preservation of traditional culture, and self-determination, activities which have a relevant benefit to Aboriginals.
53 As we have already held in respect of the applicant, such assistance and opportunities are charitable objects pursued by the applicant (see objects a) to e) of the applicant's constating instrument [cl 3] set out above, and our finding of comparability with the objects in Bindibindi and our application to this case of the findings of Wheeler J).
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54 There is nothing necessarily inconsistent arising from the subject land's use pursuant to the legal obligations of the holder of a pastoral lease, and the counterpart assistance and opportunities that are thereby created and offered by such use. Such use is, in this case, the means by which a legitimate charitable object is achieved. Such charitable use does not destroy, impair or relevantly affect the character of the lease: cf Anaconda Nickel v Western Australia (2000) 165 FLR 116, mentioned above.
55 In fact, the obligations on the lessee/applicant to use the land for "pastoral purposes" are arguably furthered by such use. No material has been provided to indicate that the Executive Government of Western Australia, as the lessor, has expressed any concerns or taken any action in regard to the applicant's non-compliance with any relevant law (for example, the Land Administration Act 1997 (WA)) or any related instrument which places relevant obligations on the applicant. Generally speaking, the idea of concurrent obligations and associated ideas or concepts are part of established legal doctrine; there are some obvious parallels with such matters and the suggested coexistence between legal ownership and the other lawful activities seen here.
56 Over time, of course, careful attention might have to be paid as regards the actual object being pursued in order to see that it is still charitable. But, on the material presently available to us, it remains so.
57 The fact that the scale of the activities as between this case and Bindibindi and the other cases that we have mentioned is quite different should not determine the matter of principle against the applicant just as, for example, the value or size of land is not generally relevant for land tax exemption purposes. Similarly, the actual "size" of "a section of the public" in relation to "[w]hether the power to grant an injunction is to be exercised generally or in a particular case" for the purpose of benefiting a section of the public, is said to be quite "irrelevant to the exercise of [that] power and to the enforcement of any order made.": Willoughby Municipal Council v Winterbottom (1979) 40 LGRA 180 at 187 (Rath J).
58 Nor, for broadly similar reasons, as a matter of principle should the particular tenure involved relevantly affect matters. In terms of the Act itself, so far as is material, tenure is as irrelevant for the purposes of the statutory exemption as it is for the imposition of rates in the first place.
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Exclusively charitable?
59 The remaining issue is whether this is relevantly "exclusively" charitable use. In Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191 at [107] - [118] this Tribunal discussed the principles by which this issue ought to be decided. We do not understand that either of the parties disagrees with this analysis; we intend to follow it in relation to the similar issues arising in this review.
60 The respondent contends that the use of the subject land as a pastoral enterprise "is not a use of the land that is 'a mere incident' of a use for a charitable purpose … it is either the predominant use of the land or a distinct and separate use of the land." Its use is said by the respondent to be,
"a distinct use … that provides some employment and training opportunities for Community members but the provision of those opportunities is not the end in itself for the enterprise. The enterprise is a use of the [subject land] that creates end benefits for the Community in the same way that letting church lands for the purpose of raising income for church purposes [Commissioner of Taxation v Trustees of St Mark's Glebe [1902] AC 416 (PC)] and the flower garden in [Nunawading Shire v Adult Deaf and Dumb Society of Victoria (1921) 29 CLR 98] provided an end benefit."
61 In Uniting Church Homes this Tribunal considered, and followed, what Wheeler J said on this point, at [115], as follows:
"[I]n [Bindibindi], Wheeler J … was faced with an argument that certain businesses with the object of training residents of the relevant land in certain business skills "would have the result of changing the character of the defendant's use and occupation of the Land so that it could no longer be said to be used 'exclusively' for charitable purposes". Her Honour continued as follows, at [38] [39] (emphasis added):
'As Fullagar J pointed out in [Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159 at 187]: 'The whole character and atmosphere of the place must be of vital importance.' In his judgment, Fullagar J was concerned with the atmosphere of an institution designed to rehabilitate delinquent boys. However, clearly the same
- observations would apply in relation to attempts within [an Aboriginal] community such as that administered by the defendant to improve living standards of residents over a long period of time by providing practical training in the skills necessary for self care and for employment and for the generation of self reliance and self respect. The relationship between what may appear to be commercial enterprises and a charitable purpose is a matter of fact in each case, but in the present case activities of the kind which I have described plainly appear to me to be directed towards serving the dominant charitable purposes.' "
62 The respondent drew attention to the assets held by the applicant's service company, the scale and dominance of the pastoral operation, its central role and its commercial form. These matters cannot be denied. But do they provide evidence of a relevantly separate non-charitable purpose which means exclusivity is relevantly destroyed?
63 We have already held that the stated purposes of the applicant are charitable and that an enforceable charitable trust of the requisite character is in existence, and that questions of form and scale are essentially irrelevant to the determination of these issues. The purpose of the applicant in holding and operating the pastoral lease is in our view directed not to a separate, say, profit-making operation as an end in itself; rather, as is clear from the discussion above, it is the most direct or outward manifestation of all of the charitable purposes that we have identified: namely those related to the social, economic and "traditional" advancement of a relevant group, currently in need, by their use of that lease (and the consequent use of the subject land). Such is the clear direction of the history of the place over the last 30 years or so, which we have drawn attention to at the commencement of these reasons. The returning of land to the traditional owners - a very poor group by Australian standards - represented in large degree by the applicant holding and exploiting the extant pastoral lease is the key to the proper characterisation of the true purpose of the pastoral operation.
64 We stress, however, that this is not a matter set in stone. At some point it may become clear that the dominant purpose of operating the lease has lost its charitable nexus or cover and has become a quite separate non-charitable end in itself. But that point has not been reached on the material before us.
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65 The application for review should therefore be allowed and a decision substituted to the effect that the subject land is not rateable.
Orders
66 The application for review is allowed.
67 The decision under review to disallow the applicant's objection is set aside and the following decision is substituted in its place:
68 "The objection is wholly allowed and on and from the rating period under review the subject land, namely Pastoral Lease 3114/576, is to be regarded as "not rateable land" within the meaning of s 6.26 of the Local Government Act 1995 (WA), on the basis that the land is used exclusively for charitable purposes."
I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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