Ambulance Service of New South Wales v Deputy Commissioner of Taxation for the Commonwealth of Australia

Ambulance Service of New South Wales v Deputy Commissioner of Taxation for the Commonwealth of Australia [2002] FCA 1023

TAXATION - "public benevolent institution" - whether the Ambulance Service of New South Wales is a "public benevolent institution" for the purposes of subs 57A(1) Fringe Benefits Tax Assessment Act 1986 (Cth) and item 4×1×1 of Table 4 referred to in subs 78(4) of Income Tax Assessment Act 1936 (Cth). WORDS & PHRASES - "public benevolent institution" Fringe Benefits Tax Assessment Act 1986 (Cth) s 57A Income Tax Assessment Act 1936 (Cth) s 78 Estate Duty Act 1914 (Cth) subs 8(5) Income Tax Assessment Act 1915-1918 (Cth) par 11(1)(d) Estate Duty Assessment Act 1914-1940 (Cth) sub 8(5) Local Government Act 1919 (NSW) par 132(1)(d) Pay-roll Tax Act 1971 (NSW) subs 10(5) Ambulance Transport Service Act 1919 (NSW) ss 2, 3, 4, 7, 8, 11, 12, 14A, 16, 18, 18A, 18B, 19, 20, 21, 21A Ambulance Service Act 1972 (NSW) ss 5, 9, 10, 11, 18, 19, 22, 27, 38, 39, 40, 41, 42, 43, 46, 47 Ambulance Services Act 1976 (NSW) ss 5, 10, 12, 13, 14, 16 Health Commission Act 1972 (NSW) ss 4, 6, 7, 18 Ambulance Services Act 1990 (NSW) ss 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 19, 20, 22, 23, 24, 30 Pay-roll Tax Act 1971 (Vict) par 10(1)(ba) National Security (War Damage to Property) Regulations reg 32 Ambulance Services Regulations 2000 Chesterman v Federal Commissioner of Taxation (1923) 32 CLR 362; (1925) 37 CLR 317 (Privy Council) referred to and discussed Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 referred to Young Men's Christian Association v Federal Commissioner of Taxation (1926) 37 CLR 351 referred to Perpetual Trustee Company Limited v Federal Commissioner of Taxation (1931) 45 CLR 224 referred to and discussed Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 referred to Swinburne v Federal Commissioner of Taxation (1920) 27 CLR 377 referred to Metropolitan Fire Brigades Board v Commissioner of Taxation (1990) 27 FCR 279 applied and discussed The Public Trustee of New South Wales v Federal Commissioner of Taxation (1934) 51 CLR 75 referred to and discussed Maughan v Federal Commissioner of Taxation (1942) 66 CLR 388 referred to and discussed Lemm v Federal Commission of Taxation (1942) 66 CLR 399 referred to and discussed The Little Company of Mary (SA) Incorporated v The Commonwealth and The Memorial Hospital Incorporated v The Commonwealth (1942) 66 CLR 368 referred to and discussed O'Connell v The Council of the City of Greater Newcastle (1941) 41 SR (NSW) 190 referred to and discussed Australian Council of Social Service Inc v Commissioner for Pay-Roll Tax (NSW) (1985) 1 NSWLR 567 referred to and discussed Federal Commissioner of Taxation v Royal Society for the Prevention of Cruelty to Animals, Queensland Inc [1993] 1 Qd R 571; (1992) 92 ATC 4441 referred to and discussed Commissioner of Pay-Roll Tax (Vic) v The Cairnmillar Institute [1992] 2 VR 706; (1992) 92 ATC 4,307 referred to Mines Rescue Board (NSW) v Commissioner of Taxation (2000) 101 FCR 91 applied and discussed Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 referred to Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577 referred to Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282 referred to Renmark Hotel Inc v Federal Commissioner of Taxation (1949) 79 CLR 10 referred to Western Australian Turf Club v Federal Commissioner of Taxation (1978) 139 CLR 288 referred to Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation (1992) 175 CLR 442 referred to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219 referred to State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 referred to State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 referred to Tangentyere Council Inc v The Commissioner of Taxes (NT) (1990) 99 FLR 363 referred to P W Hogg Liability of the Crown (2nd Ed) W G Friedmann "Legal Status of Incorporated Public Authorities" (1948) 22 ALJ 7

Ambulance Service of New South Wales v Deputy Commissioner of Taxation for the Commonwealth of Australia

BETWEEN: AMBULANCE SERVICE OF NEW SOUTH WALES

AND: DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

REASONS FOR JUDGMENT 1 The only issue for decision in these proceedings is whether the applicant, the Ambulance Service of New South Wales, is a "public benevolent institution" for the purposes of: (a) subs 57A(1) of the Fringe Benefits Tax Assessment Act 1986 (Cth) (the FBT Act); and (b) item 4.1.1 of Table 4 appearing after, and referred to in, subs 78(4) of the Income Tax Assessment Act 1936 (Cth) (the ITA Act). It was not suggested in argument that I should approach the issue to which I have referred differently by reason of the words of the different provisions. 2 The phrase "public benevolent institution" is one which has been employed in various revenue statutes (State and Commonwealth) since the first quarter of last century. The phrase has been dealt with in a number of cases. It is necessary to examine those cases in order to deal with the primary contention of the respondent in these proceedings, that the applicant is sufficiently governmental in character - that is in its constitution, funding and functions - not to fall, or to be capable of falling, within the accepted meaning of the phrase.

"public benefit institution" 3 In 1923, in Chesterman v Federal Commissioner of Taxation (1923) 32 CLR 362, the High Court (by majority) decided that the word "charitable", in the exemption from estate duty in subs 8(5) of the Estate Duty Act 1914 (Cth) expressed in terms "for religious, scientific, charitable or public educational purposes", was not used in its technical legal sense as understood in the law of charity by reference, in particular, to what Lord Macnaghten said in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531, 583. Rather, the Court said that the word was used in its popular sense, in its ordinary meaning. This sense or meaning involved the relief of any form of necessity, destitution or helplessness (physical or spiritual) which excited compassion or sympathy and so appealed to people's benevolence for relief; this included benevolent assistance in aid of the physical, mental and even spiritual progress for the benefit of those whose means were otherwise insufficient: see especially Isaacs J (at 384-85), Rich J (at 398) and Starke J (at 399-400). On appeal, the Privy Council disagreed. Their Lordships were of the view that the general rule that words must be taken in their legal sense applied, there being no contrary intention: (1925) 37 CLR 317, 319. Thus the words "charitable purposes" were to be understood in accordance with the categories identified by Lord Macnaghten in Pemsel's case derived from the Statute of Elizabeth. 4 After the Privy Council's rejection of the approach of the High Court to the word "charitable" in Chesterman, supra, concerning in the Estate Duty Act, Isaacs J in Young Men's Christian Association v Federal Commissioner of Taxation (1926) 37 CLR 351 at 359 said the following about the phrase "charitable institution" in par 11(1)(d) of Income Tax Assessment Act 1915-1918 (Cth) which exempted from income tax the income of a religious, scientific, charitable or public education institution: It is obvious to me that in the interests of all concerned the meaning of Parliament should be legislatively declared beyond doubt. …Litigation, perhaps protracted and expensive, is inevitable unless Parliament by a few words declares whether by "charitable" it means to use that word in its ordinary modern sense, or in the technical Elizabethan sense that some quaint Chancery decisions in connection with trusts have affixed to it as its primary legal meaning, extending to objects which include, as I have said, purposes quite outside what any ordinary person would understand by charitable. 5 On 11 September 1928, the Commonwealth Treasurer (Dr Earle Page) said the following in the House of Representatives in introducing the amendment to the Estate Duty Act: The High Court held [in Chesterman's case] that this bequest is not a charitable bequest within the meaning of the act, because its character is not eleemosynary, and because the word "charitable" was, in the opinion of the court, used in the actin its popular meaning which involves the idea of assisting poverty or destitution. The Privy Council [on appeal in Chesterman's case] held that the four words "religious," "scientific," "charitable" and "public educational," as used in the section, are not mutually exclusive, and that the word "charitable" as used in the act must be given its technical legal meaning as used in the Elizabethan sense… When the Estate Duty Act was passed it was intended that the four terms referred to should be mutually exclusive. It is proposed to bring this about by means of the proposed amendment. The bill will also make clear the charitable purposes intended to be provided for. For this purpose it uses the language which was inserted by Parliament for the same purpose in the Income Tax Assessment Act 1927, in connexion with deductions for donations to public charitable institutions. 6 Subsection 8(5) of the Estate Duty Act was amended by the removal of the word "charitable" and its replacement by the following: or to a public hospital or public benevolent institution in Australia or to a fund established and maintained for the purpose of providing money for use for such institutions or for the relief of persons in necessitous circumstances in Australia. 7 The phrase "public benevolent institution" had already been employed in par 132(1)(d) of the Local Government Act 1919 (NSW) which provision had exempted from rating land, which, amongst other things, belonged to any public hospital, public benevolent institution or public charity. 8 Shortly thereafter, the High Court dealt with the new, amended, subs 8(5) and the phrase "public benevolent institution" in Perpetual Trustee Company Limited v Federal Commissioner of Taxation (1931) 45 CLR 224. The case concerned a bequest to the Royal Naval House near the Rocks adjacent to Sydney Harbour. The establishment provided dormitories, recreation facilities and a place for lectures, concerts and the like for men in the Royal Australian Navy and Royal Navy. Petty officers and seamen of warships of other nations were also eligible to avail themselves of the accommodation there when ashore in Sydney. A small charge was made for accommodation, meals, baths, billiards and lockers. Other services were provided without charge. The land had been made available by the Government of the Colony of New South Wales. The cost of the building and additions to it had been paid for from subscriptions from men of the Royal Navy, from grants by the Colonial Government and State Government (of New South Wales) and from a grant by the Lords Commissioners of the Admiralty. The affairs of the House were governed by trustees and a House Committee. There were twelve trustees comprising two senior Australian Naval Officers, the New South Wales Chief Secretary and nine others. The original trustees were appointed by the Governor of the Colony of New South Wales. Vacancies were filled by the remaining trustees, with the approval of the Governor of New South Wales, which approval was notified in the Government Gazette. The trustees, who received no remuneration, were appointed for life. The House Committee consisted of the trustees and various Australian Naval Officers. The House was inspected, from time to time, by members of the Naval Board and Naval officers. There was no written constitution or trust deed governing the affairs of the House. 9 A number of propositions were put forward about the phrase "public benevolent institution" which are of relevance to the resolution of the present proceedings. First, it was said that the expression did not have a technical legal meaning, but was to be understood in the sense in which it is commonly used in the English language: Starke J at 231-32 and Dixon J at 233. Secondly, it was said that the phrase was a composite or compound expression: Starke J at 132 and Dixon J at 233. Thirdly, it was said that in the context in which it appeared (in association with public hospitals and funds for the relief of persons in necessitous circumstances) and in ordinary English usage it meant an institution organised for the relief of poverty, sickness, destitution or helplessness: Starke J at 232; or for the relief of poverty, distress, suffering or misfortune: Dixon J at 233; or an institution which gave relief to those who were in need of it and who were unable to care for themselves: the poor, the sick, the aged and the young, in circumstances in which their disability or distress aroused pity: Evatt J at 235-36. Fourthly, it was said that the words "benevolent institution", used in combination, denoted bodies organised for the relief of distress or poverty and not merely those displaying kindness or goodness, that is benignancy: Dixon J at 233. Fifthly, it was said that since the task of construction involved a question of the ordinary meaning of the phrase, the Court could have regard to its own experience in the use of terms: Dixon J at 233. 10 The decision of the majority that the House was not a public benevolent institution was not based on an express absence of a "public" element. Starke J approached the matter implicitly by denying any element of the relief of poverty, sickness, destitution or helplessness; his Honour concluded that it would "surprise English-speaking people… to learn that in the Royal Naval House naval forces are accommodated and entertained at a public benevolent institution": at 232. Dixon J said that "[b]ecause of its association with the various Governments, and because it is concerned with the naval forces of the country, it would be difficult, if it be a benevolent institution, to deny it the description 'public'": at 232. His Honour said expressly that the House did not relieve poverty, distress, suffering or misfortune: at 233. Likewise, Evatt J said that the naval seaman using the House was not "in distress"; "[O]n the contrary," his Honour said "he is a chosen and active protector of the nation, the object not of compassion but of admiration": at 236. It is to be noted that Dixon J saw as relevant to the "public" element of the composite phrase, the "association with the various Governments". This association did not amount to control by a government in the fullest sense. But the point is it was not seen as a disqualifying element, but as a discussion of "public". 11 Starke J and Dixon J referred to the phrase as a compound or composite one. That does not mean that the words making up the whole phrase have no individual role to play: see the approach of Dixon J at 232-33 in his comments on the sufficient existence of governmental association so as to satisfy the "public" element of the phrase. However, that said, it is important to recall that it is the ordinary meaning of the whole phrase, "public benevolent institution", which the Court said had to be met: see the recognition by Dixon J at 233 that the objects of the House were "benevolent" (in one sense), but that the House was not a "benevolent institution". In this context of a whole phrase, the comments of McHugh J, though in a different context, in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 256, as to the error in analysing and adding up the linguistic elements of a whole phrase, rather than attending to the meaning of the phrase a whole, are apposite. See also Swinburne v Federal Commissioner of Taxation (1920) 27 CLR 377, 384 (implicitly overturned by the Privy Council in Chesterman, supra, but not in a way to affect this issue) and the Full Court in Metropolitan Fire Brigades Board v Commissioner of Taxation (1990) 27 FCR 279, 281 (see below). 12 The High Court returned to subs 8(5) of the Estate Duty Act and the phrase "public benevolent institution" in The Public Trustee of New South Wales v Federal Commissioner of Taxation (1934) 51 CLR 75. In that case, the testator had left half his residuary estate to four named Church of England homes for children and, at the discretion of the trustees after consultation with his widow, to any other homes for children founded by the Church of England having for their objects the care and control of children. 13 Starke J (at 100) accepted that the institutions named and provided for did give relief to the needy, the sick and the helpless. However, his Honour found them to be private, not public, institutions. He said (at 100): But they are private organizations conducted by or in connection with the Church of England in Australia, and are not founded, organized or maintained by or under or in connection with any public authority, or managed by its representatives… 14 It should be noted that Starke J said this immediately before reiterating (at 100) that the expression was not a term of art, and that his Honour was of the view that the denominational homes were not, in his view, within the ordinary meaning of the expression. This is important, because Starke J's comments at [13] above should be seen as his Honour's explanation for why, in his opinion, these denominational homes did not fall within the ordinary meaning of the phrase, not as the laying down of a legal rule, to be applied a priori, that it was a necessary legal element for any conclusion that an organisation was a "public benevolent institution" that it be "founded, organized or maintained by or under or in connection with any public authority". 15 Dixon J (with whom Rich J agreed) said (at 104) that institutions could be imagined which were connected with the health, upbringing, welfare and education of young children and coming within the technical legal conception of "charity", but to which no-one would apply the term "public benevolent institution". His Honour had referred to the phrase almost immediately prior to this at (103-104) where he said: The description "public benevolent institution" has received an interpretation by this Court (Perpetual Trustee Co v Federal Commissioner of Taxation (1931) 45 CLR 224). It is to be treated as a compound expression referring to institutions "organised for the relief of poverty, sickness, destitution, or helplessness" (per Starke J, at p 232). The phrase I used was "the relief of poverty, distress, suffering or misfortune" (p 233). Evatt J said (at pp 235-36): - "Such bodies vary greatly in scope and character. But they have one thing in common: they give relief freely to those who are in need of it and who are unable to care for themselves. Those who receive aid or comfort in this way are the poor, the sick, the aged, and the young. Their disability or distress arouses pity, and the institutions are designed to give them protection. They are very numerous - the nobler a soul is the more objects of compassion it hath - and they have come to be known as 'benevolent institutions.'" McTiernan J dissented on the ground that this was too narrow a meaning. Conceding that a gift to an institution benefiting young children in a way which makes it a charitable or benevolent object may be a valid disposition for charitable purposes, I nevertheless do not think that the institutions it covers are confined to public benevolent institutions of the required description… 16 Thus, for Dixon J (and Rich J) it was not the absence of a public element which prevented the homes being "public benevolent institutions", but the width of objects of the possible institutions. They provided for circumstances which could simply be described as benevolent or benignant in the sense his Honour had mentioned in Perpetual Trustee, supra at 233, that is merely exhibiting kindness, and so beyond the scope of relieving distress and suffering. 17 The High Court returned to the phrase "public benevolent institution" in Maughan v Federal Commissioner of Taxation (1942) 66 CLR 388, in dealing with par 78(1)(a)(ii) of the ITA Act in its then form, which allowed, as a deduction, gifts to a "public benevolent institution". At the same time the same bench (Rich, McTiernan and Williams JJ) heard and decided the case of Lemm v Federal Commission of Taxation (1942) 66 CLR 399, which dealt with the phrase in subs 8(5) of the (by then named) Estate Duty Assessment Act 1914-1940 (Cth). These two cases, importantly for the present proceedings, dealt with the element of "public" in the phrase. I will come to them shortly. A little over a month before Maughan and Lemm were handed down, a differently constituted bench, though including Rich J (together with Latham CJ and Starke J), heard two cases - The Little Company of Mary (SA) Incorporated v The Commonwealth and The Memorial Hospital Incorporated v The Commonwealth (1942) 66 CLR 368. These two cases concerned the phrase "public hospital" in reg 32 of the National Security (War Damage to Property) Regulations (SR 1942 No 79), which exempted from the assessment of any obligation to pay contributions to the War Damage Fund, inter alia, fixed property or plant used primarily and principally as or in (a) a public hospital or (b) a public benevolent institution. 18 The members of the plaintiff association in the first case (the Little Company of Mary) comprised a congregation of nursing sisters of the Roman Catholic Church. The Little Company of Mary owned and conducted the Calvary Hospital in North Adelaide. The plaintiff in the second case (the Memorial Hospital Inc) carried on the Memorial Hospital, also in North Adelaide. 19 The Calvary Hospital was established using money and property provided by the South Australian public and by the Little Company of Mary. The objects or purposes of the Little Company of Mary included the following: (ii) To establish and carry on a nursing institution or nursing institutions. (iii) In particular to establish and maintain a hospital or hospitals for the benefit of the public generally, irrespective of class or religious belief, and particularly to maintain the same for the poor and those of limited means. 20 The Memorial Hospital was established in 1919 by the Methodist Church with gifts from members of the public of all religious denominations. It was under the control of the Methodist Church. Its objects were: (a) To provide and maintain hospitals and rest homes for the medical and surgical treatment of patients and persons requiring hospital treatment. (b) To perpetuate the memory and sacrifice of those who gave their lives in the Great War 1914-1919. 21 Both hospital charged fees at varying rates. The staff of the Calvary Hospital included thirty-five sisters of the Little Company of Mary, but no discrimination ("of either class or religion": at 371) was made in the hiring of lay nurses or paid staff. Both hospitals were open to the public, irrespective of the faith of the patient. Neither hospital was carried on for profit and no person derived any monetary gain from the running of either hospital. Neither hospital had been declared a "public hospital" under s 5 of the Hospitals Act 1934 (SA). 22 Latham CJ placed emphasis on public control as a constituent of "public" in the phrase "public hospital". His Honour distinguished both hospitals the subject of the proceedings from the Mater Misericordiae Hospital in Waratah, New South Wales, which had been the subject of consideration by Jordan CJ in O'Connell v The Council of the City of Greater Newcastle (1941) 41 SR (NSW) 190 in connection with the rating exception in par 132(1)(d) of the Local Government Act 1919 (NSW), and which been held to be a "public hospital" by the Full Court in that case. Latham CJ noted (at 378-79) that whether any particular hospital was a public hospital was a question to be determined on the facts of each case and was a question on which prior cases were of little value as precedents. However, he pointed out (at 379) that in respect of the Mater: The hospital was subject to the Public Hospitals Act 1929-1940 (NSW): see sec 4. As a hospital mentioned in the Third Schedule it was bound to submit to any inquiry into administration and management which the Hospitals Commission might think proper to make; it was subject to annual inspection; it was eligible for subsidy from public moneys; and the Commission could attach to the payment of any subsidy such conditions in respect of the maintenance, equipment, management, capital expenditure, building, or repairs to existing buildings as it might think fit (sec 11). The hospital was bound to receive destitute persons without payment (sec 30(6)). It would have been difficult to hold that a hospital subject in this degree to a Public Hospitals Act was not a public hospital within the meaning of another New South Wales statute. The Calvary and Memorial Hospitals possess none of the characteristics mentioned. 23 Latham CJ then proceeded to answer the question before the Court by reference to the common understanding of the phrase in question. He said (at 379-80): I therefore ask whether, in common understanding, these hospitals would be called "public hospitals." I find it difficult to believe that the patients in them would not be very astonished if they or their friends were told that they were in a public hospital. So also I conceive that the authorities of both the Roman Catholic Church and of the Methodist Church would receive with incredulity a statement that their respective institutions were public institutions and not simply and entirely church institutions. The question is not merely whether there is any charitable element in the conduct of the hospitals. There is such an element, but it is not very great. From the point of view of the community - the public in the ordinary sense - these are, I think, private institutions, controlled by churches which would naturally most strongly object to any claim that the public had any rights whatever in relation to the hospitals - whether as to management and control, or as to admission of patients, or as to utilization of funds, or as to disposition of property, or as to development or continuance of the hospital undertakings. The hospitals are not carried on for the purpose of discharging any duties owed to the public: cf Griffiths v Smith (1941) AC 170, at pp 178, 186, 206. The only element which, in these cases, points to the opposite conclusion, is to be found in the degree to which benevolent treatment is given, and this, though admirable, is relatively small. The hospitals are open to the public only in the sense that there is no exclusion of any specific class on religious or other grounds. But that may be said of most, if not all, private hospitals. Further, these hospitals are not conducted for the private profit of the members of the associations which own and control them. But the profits can be used and rightly used for church purposes as the churches concerned think proper. It cannot be said, as it appears to me, that the churches are bound to continue to apply the profits to hospital purposes. I think that these hospitals are, to borrow the words of Starke J in Public Trustee (NSW) v Federal Commissioner of Taxation (1934) 51 CLR 75 at p 100 private organizations conducted by or in connection with churches. 24 Starke J referred (at 385-86) to the elusiveness of the adjective "public". He said (at 386): [T]he authorities establish that whether a hospital is public or private is, in the main, a question of fact and a question of degree in every case. It depends, not so much upon the manner in which the Calvary Hospital was established and is financed, as upon the character of the hospital and the nature of the services rendered... 25 Whilst recognising, as relevant considerations, that the purpose of those who established and conducted the hospitals was for the care of the sick irrespective of background and religion, that the hospitals were not conducted for private profit and that the hospitals provided services of inestimable value to the people of South Australia, Starke J concluded that they were not "public hospitals". Speaking of Calvary (but equally applicable to Memorial) his Honour said (at 386): The hospital was established by a private organization; it is not subject to the control or supervision of any public authority; the public have no right of admission - no trust or other right has been created in their favour and the patients are charged for their maintenance and treatment unless too poor to pay therefor. Apart from authority, I should not have thought that such a hospital would, in the ordinary and usual use of words, be described as a "public hospital", but the question is one of fact to be resolved upon a consideration of all the circumstances. In my judgment, the Calvary Hospital, having regard to all the circumstances of the case, is not a "public hospital" within the meaning of the Regulations already mentioned. The facts which lead me to this conclusion are that the hospital was established and is conducted by a private organization, that it is not subject to the control or supervision of any public authority, that the public have no right of admission to the hospital, and, substantially, are charged for their treatment. 26 In the reasons of each of Latham CJ and Starke J the lack of public control or some element of public control or supervision was a consideration in coming to a view, overall, as to whether the ordinary meaning of the phrase "public hospital" was satisfied. It was a discussion ending in the characterisation as a public hospital. 27 Rich J dissented. He said the following in connection with the phrase "public hospital" (at 380-81): No definition of the latter expression is given in the Regulations and in relevant judicial decisions as to the meaning of the word "public" judges have refrained from attempting an exhaustive decision. It is neither necessary nor desirable to do so. In every case which arises for determination a number of factors have to be considered, and none is an absolute criterion. "Public hospital" is not a precise or technical expression. In Hall v Derby Sanitary Authority (1885) 16 QBD 163 the question for determination was whether a certain orphanage was a public institution and A L Smith J, as he then was, lays it down simply that if a thing is not "private" then it is "public" [(1885) 16 QBD at p 173], recalling inevitably the definition of prose which we owe to Le Bourgeois Gentilhomme. The definition to which Darling J, as he then was, in Royal Masonic Institution v Parkes (1912) 3 KB 212 at p 216 refers, is to be found in Acte II, Scčne VI: Le Maitre de Philosophie - "Tout ce qui n'est point prose est vers et tout ce qui n'est point vers est prose." In Seal v Trustees of the British Orphan Asylum (1911) 104 LT 424 at p 428 Hamilton J, as he then was, also adopts the language of A L Smith J in Hall's Case (1885) 16 QBD at p 173, who distinguishes "public" from "private" by regarding the purposes which the particular institution served. The observations of Hamilton J in Seal's Case (1911) 104 LT at p 428, as to the publicity and purposes of the orphanage institution he was then considering are very relevant in the same connection in this case. 28 For Rich J, the purposes served (rather than public control) were central. At 383-84 his Honour made this clear, significantly, in the light of the approach of Latham CJ referred to at [22] and [23] above. At 383-84 his Honour said: "Public control" is not, in my opinion, an essential element in the definition of "public hospital." In any event the sections of the Associations Incorporation Act to which I have referred show that the association, its rules and operations are subject to supervision by a public officer and a court. In this connection I concur in the interpretation of the expression "public hospital" occurring in a similar context in the Local Government Act 1919-1940 (NSW) by Jordan CJ in O'Connell v Newcastle Municipal Council (1941) 41 SR (NSW) 190; 58 WN 166, where his Honour says: - "I can see nothing in the phrase 'public hospital' nor in its immediate or general context to suggest that it is confined to hospitals which are subject to some form of public control (whatever is to be understood by this expression) and whose income and property are not at the disposal of any private authority. On the contrary, it is the purpose to which the hospital is directed, not the manner in which it is controlled, which determines whether it should be regarded as a public hospital" (1941) 41 SR (NSW) at p 193; 58 WN, at p 168. The terms and circumstances in which sick relief is given are material conditions. Public service is the discrimen - and publicity may be gauged by the extensiveness of an institution's operations (A-G v Pearce (1740) 2 Atk. 87 [26 ER 454]; Shaw v Halifax Corporation (1915) 2 KB at pp 180-184). The admitted facts show that the hospital, having regard to its objects and operations, is carried on for the benefit of the community or an appreciably important class of the community (Verge v Somerville (1924) AC 496 at p 499) and "not for private gain but for the public good" (Seal v Trustees of the British Orphan Asylum (1911) 104 LT, at p 428). During the relevant period the profits from the hospital have been applied solely to the operations of the hospital. Par 19 of the case stated emphasises the fact that "the hospital is not carried on for purposes of profit; and no person derives any profit or monetary gain therefrom." Indeed, any diversion of the profits to other purposes whether religious or otherwise would bring the association within the prohibition contained in sec 3 of the Associations Incorporation Act and endanger its incorporation. Thus the hospital is clearly distinguishable from what is known as a private hospital established and carried on for private gain as a means of livelihood for the owners. And in my opinion the scope and operations of the hospital are sufficiently wide and large to make it a public hospital within the meaning of reg 32. 29 In Maughan v Federal Commissioner of Taxation, supra, the Court (Rich, McTiernan and Williams JJ) considered whether an organisation called the Boys' Brigade Inc, which provided to underprivileged boys up to about fourteen or fifteen years of age from the inner suburbs of Sydney what was described in the evidence as "a wholesome environment, and intelligent occupation for their leisure hours, in substitution for the demoralising influences of the streets and, even, in some cases, the boys' homes", was a "public benevolent institution". The association was financed entirely by public donations, bequests and subscriptions. The objects of the association included the following: To carry on and conduct an institution or institutions in the City of Sydney and/or elsewhere in the State of New South Wales or elsewhere in the Commonwealth of Australia for the development as good citizens of the boys of the State or the Commonwealth; to cultivate Christian manliness; to promote habits of reverence, loyalty, industry, discipline and self-respect. Nothing herein contained or implied shall limit the class of persons to whom assistance or benefit of any kind may be given by the Association. There was a Council of fourteen that controlled the affairs of the organisation. 30 Williams J wrote the leading judgement. Rich J and McTiernan J concurred. McTiernan J also added some comments of his own. The reasons of Williams J and the comments of McTiernan J should be read in the light of the argument in which it was submitted by counsel for the organisation that despite contrary opinions expressed by Starke J in Public Trustee, supra at 100 (see [13] and [14] above) and by Latham CJ and Starke J in The Little Company of Mary, supra at 379-80 and 386 respectively (see [22] to [26] above), it is not necessary that a hospital in order to be a "public" hospital should be controlled by the government or some other public authority. In that context, McTiernan J said the following (at 395-96): The institution is not incapable of being properly described as a public benevolent institution because it is not owned or controlled by the Government. It would be contrary to a considerable volume of judicial authority to say that such is the only test whether an institution is public. An individual may render public service although he is not a public official or controlled by the Government. The premises and the facilities of this institution and its services are provided for an extensive class, and by reason of the measure of its public service and the conditions under which it is given, I agree it is not open, on the facts of the case, to say it is not a public benevolent institution. 31 Williams J discussed the question of public control (at 397): The question whether an institution is subject to some form of public control is a factor to be taken into account in determining whether it is a public institution (The Little Company of Mary (SA) Incorporated v The Commonwealth). But public control is not essential (the main criterion is the extensiveness of the class it is the object of the institution to benefit) and, in order to be of a public nature, the control need not be, in my opinion, that of some government body. A constitution which provides for those members of the public who are sufficiently interested in the work of the institution to subscribe to its funds and thereby become annual members and as such eligible to vote at the election of the controlling body creates a control which is public in its nature. It is the sort of control that one could expect to find for an institution which carries on activities calculated to arouse the interest of a considerable number of well-disposed citizens with a liberal and progressive outlook, to cause them to subscribe to its funds and to take an interest in its management and work. Similar provisions are contained in Part V of the Public Hospitals Act 1929-1940 (NSW). [Emphasis added] 32 Two matters are worthy of comment at this point. First, the benevolent or charitable element of the phrase is for the relief of suffering or misery. This characteristic of a "benevolent institution" is likely to evoke sympathy, and, concomitantly, generosity from well-disposed people. In those circumstances, the revenue exemptions, such as s 78 of the ITA Act, can be seen as intended to encourage such well-disposed people to give to such objects. The existence of public control is not inimical to the creation of a desire in well-disposed people to support an institution which relieves distress; nor is it inimical to the encouragement, by statutory revenue exemption, of such relieving activity and support thereof. Secondly, Part V of the Public Hospitals Act 1929 (NSW), referred to by Williams J (at [31] above), contained provisions for public hospitals incorporated under the Public Hospitals Act as follows: to have just under half their directors appointed by the Governor (s 22) (though the Governor had the power to appoint all directors (s 25)); to enable the Governor to remove all directors and to direct that the management and administration of a hospital be carried out by the Hospitals Commission (created and provided for under Part II of the same Act) (s 26); to empower the board of a hospital, with the approval of the said Commission, to make by-laws and fix penalties in respect of various matters. 33 Further, in Maughan Williams J referred to another provision of s 78, added in 1939, providing for the deductibility of gifts to a public institution or fund established and maintained for the comfort, recreation or welfare of the members of the Naval, Military or Air Forces of the Commonwealth. Williams J said (at 397-98): This amendment is significant as showing that the Parliament evidently intended the word "public" to include institutions which, like the Royal Naval House, provide for the needs of some special but substantial class of the community. But this is merely a recognition of the view established by many decisions (see the cases collected in the judgement of Rich J in The Little Company of Mary Case) that an institution which aims at benefiting an appreciable and particularly but not necessarily an appreciable needy section of the community is a public institution. To sum up, the sources of the Association's finances are public benevolence, it is controlled by an executive elected upon a quasi-public basis, and its activities, which accord with and fulfil the main objects in the memorandum of association, are of a benevolent nature. 34 Also, relevantly, in Maughan, Williams J also gave guidance as to the notion of an institution. At 398 his Honour said: It complies with the following definition of an institution contained in the speech of Lord Macnaghten in Mayor & c. of Manchester v McAdam (1896) AC 500 at pp 511, 512: "It is the body (so to speak) called into existence to translate the purpose as conceived in the mind of the founders into a living and active principle Sometimes the word is used to denote merely the local habitation or the head-quarters of the institution. Sometimes it comprehends everything that goes to make up the institution - everything belonging to the undertaking in connection with the purpose which informs and animates the whole": See also Minister for National Revenue v Trusts and Guarantee Co Ltd (1940) AC 138 at pp 149,150. 35 In Lemm v Federal Commissioner of Taxation, supra, the Court considered whether a devise for the purpose of a home for aged women in straightened circumstances who would be required to pay one pound per week towards the upkeep of the home was to a "public benevolent institution" for the purposes of subs 8(5) of the Estate Duty Assessment Act. 36 Williams J once again delivered reasons with which both Rich J and McTiernan J agreed. Williams J dealt with the elements of the phrase "public benevolent institution". Counsel for the Federal Commissioner relied on what Starke J said in Public Trustee, supra at 100 (see [13] above) and also submitted that the class of women catered for was a relatively small section of the community. Williams J said that the institution was public and that the class benefited was sufficiently wide. His Honour laid stress on the conferring of the relevant (that is necessitous) benevolence upon an appreciably real class in the community as the most important "test" of what is a public benevolent institution. At 410-411 his Honour said: The control of the institution is vested in the Church Property Trust. This body, which is incorporated by Act of Parliament, is a public body in the sense that it represents an important section of the community (Royal Masonic Institution for Boys (Trustees of) v Parkes (1912) 3 KB 212 at p 217.) The benefits of the institution are available to members of the class of aged women in straitened circumstances irrespective of their religion. A home for such women, even if they are able to pay one pound per week, is an institution organized for the relief of poverty. Poverty is a relative term. There are degrees of poverty less acute than abject poverty or destitution, but poverty nevertheless (In re Clarke (1923) 2 Ch 407; In re de Carteret; Forster v de Carteret (1933) Ch 103 at pp 108-113.) It is therefore a benevolent institution within the meaning of the sub-section (Perpetual Trustee Co Ltd v Federal Commissioner of Taxation (1931) 45 CLR 224). The purpose of the home is to confer benevolence upon an appreciable needy class in the community, so that it complies with the most important test of what is a public institution (Shaw v Halifax Corporation (1915) 2 KB 170). The conclusion is that the devise of 23 Charlotte Street is to a public benevolent institution in Australia and that the legacy of Ł500 is bequeathed and the four shops devised to a fund established and maintained for the purposes of providing money for its use within the meaning of the sub-section. 37 Thus, at this time, the courts treated the question whether any given body fell within the phrase "public benevolent institution" as a matter of popular or ordinary meaning at that particular time. Nevertheless, decided cases identified legal issues affecting or influencing the answering of that question. They illuminated its meaning. One theme seen in the judgments of Latham CJ and Starke J was the requirement, for the satisfaction of the "public" element of the phrase, for there to be at least a degree of public control, meaning government control. Whilst not rejecting such a consideration as irrelevant (as a factor assisting a conclusion that the "public" element was satisfied), other judges, in particular Rich J, Williams J and Jordan CJ (the latter in the context of the expression "public hospital") said that the nature and extent of the benevolence conferred was the principal consideration in the "public" nature of the institution. No case had been decided on the basis that the governmental control was so extensive and complete as to render ineligible the institution (if it be one) from being seen as a "public benevolent institution". 38 Also, it is important to appreciate that no court had decided that the central enquiry was other than that which was identified by Starke J and Dixon J in Perpetual, supra at 231-32 and 233: that is an enquiry as to the satisfaction of the ordinary English meaning of the phrase as a composite whole ([9]-[11] above). 39 In Australian Council of Social Service Inc v Commissioner for Pay-Roll Tax (NSW) (1985) 1 NSWLR 567 (the ACOSS case) the New South Wales Court of Appeal (Street CJ, Mahoney and Priestley JJA) dealt with the phrase "public benevolent institution" in par 10(1)(b) (an exempting provision) of the Pay-roll Tax Act 1971 (NSW). Street CJ agreed with the conclusion of Priestley JA that, on the facts of the case, ACOSS' activities did not fall within the description of the phrase. However, Street CJ did (at 568) say something about the role of authorities in the task at hand: The phrase "public benevolent institution" is not circumscribed by any statutory definition; nor is it a term of art: Public Trustee of New South Wales v Federal Commissioner of Taxation (1934) 51 CLR 75 at 100. Its import has been illuminated by authoritative decisions. Whilst its meaning is thus not absolutely incapable of extension or modification, the pursuit of certainty in the operation of statutes and dispositive instruments such as wills and settlements is a powerful factor to be taken into account when it is sought, as it is in the present appeal, to widen the established scope of those words. The fact is that those words do have an established scope, one of the elements of which involves the ascertainment of the identity of the persons to benefit from the benevolence of the institution in question. … This, of course, does not necessarily and of itself predicate that direct dispensation of benefits is a prerequisite. It does, however, provide a strongly persuasive basis for holding that, over the passage of years, this element has now become built into the concept of a public benevolent institution. The judges of the past have taken this for granted and it is a long step to hold that a comparatively modern statute (the Pay-roll Tax Act was passed in 1971) can properly be construed as being freed from that basic factual element. 40 Priestley JA (with whom Mahoney JA agreed) said (at 575) that "there might well be some force in [the] submission" that Perpetual, supra, should not be mechanically applied to exclude ACOSS from the exemption, that ACOSS fell within the meaning of the phrase on present popular or ordinary notions of benevolence and that the content of the phrase "public benevolent institution" had expanded since 1931 when Perpetual, supra, was decided. 41 In Federal Commissioner of Taxation v Royal Society for the Prevention of Cruelty to Animals, Queensland Inc [1993] 1 Qd R 571; (1992) 92 ATC 4441, Fitzgerald P and Thomas J both approached the question as a legal one to be answered by application of earlier authority: see 574-5, 577-8, 581-83; 4,443, 4,445 and 4,448-49. Thomas J said (at 582; 4,449): If the matter were now one of first instance, the Courts might well adopt what they consider to be the contemporary common understanding of the words in the community. It is certainly arguable that the respondent Society is a "public benevolent institution" and a "public charity" in the popular sense of those words, and that in the popular sense there is little or no distinction between them. This in the end, seems to be the basis upon which the learned chamber Judge decided the matter in favour of the Society. However in my view the matter is no longer at large. I agree with Street CJ in Australian Council of Social Service Inc v Commissioner of Pay-roll Tax (NSW) 85 ATC 4235, 4236; (1985) 1 NSWLR 567, 569, that the pursuit of certainty in the operation of Statutes makes it difficult to take a new approach at this stage. I also agree with Fitzgerald P that it is not to the point to consider the present popular meaning of "public charity", or the legal meaning of "public charity" or the present popular meaning of "public benevolent institution". Given the history of the legal decisions and legislation, we are concerned with a well established albeit limited legal meaning of "public benevolent institution". [Emphasis added] 42 With respect, the view that the question is an entirely legal one, to be dealt with by the application of past authority, irrespective of the present common understanding of the composite phrase in the currently spoken English language, is difficult to reconcile with what those High Court authorities say: for example see Starke J and Dixon J in Perpetual, supra at 231-32 and 233 ([9] above); Starke J in Public Trustee, supra at 100 ([14] above); Latham CJ, Starke J and Rich J in The Little Company of Mary, supra at 279-80, 386 and 380-81 ([23], [24] and [27] above); McTiernan J in Maughan, supra at 395-96 ([30] above). Nor, with respect, did Street CJ put the matter thus in the ACOSS case. 43 In 1992 the Full Court of the Victorian Supreme Court in Commissioner of Pay-Roll Tax (Vic) v The Cairnmillar Institute [1992] 2 VR 706; 92 ATC 4,307 (the Cairnmillar Institute case) dealt with the phrase "public benevolent institution" in par 10(1)(ba) of the Pay-roll Tax Act 1971 (Vict). Of relevance to the present proceedings is the clear statement by Gobbo J (with whom Brooking and Tadgell JJ agreed), after an examination of the authorities, that the making of a charge for the relief provided does not disqualify the institution from the characterisation of "public benefit institution" and does not prevent the activities being seen as benevolent. 44 With this background, I now turn to two decisions of the Full Court of this Court both of which deal with the importance of the characterisation of the body in question as governmental to any conclusion as to whether it is a "public benevolent institution". 45 In Metropolitan Fire Brigades Board v Commissioner of Taxation, supra (the Fire Brigades case) the Full Court of this Court decided that the Metropolitan Fire Brigades Boards (the Boards), constituted under the Fire Brigades Act 1964 (Qld) and then provided for under the Fire Service Act 1990 (Qld) were not "public benevolent institutions" under subs 57A(1) of the FBT Act. The Court first examined the Fire Brigades Act and its provisions dealing with the appointment by the Governor of some of the members of the Boards, the power of the relevant Minister to control Boards, the budgetary control of the Minister, the power of the Minister to recommend dissolution of Boards, and the power to make by-laws and impose penalties for breach thereof. The funding of the Boards was substantially by the State Government out of its own funds and from a trust fund established under the Fire Brigades Act from compulsory "contributions" under the Act, which were characterised by the Court as taxes on property owners. The Court concluded (at 280) that each Board was "made a governmental body" and was "an emanation of government". 46 The Court described the Boards' functions, being the control and extinguishing of fires, the protection of life and property in case of fire and other related matters as provided for in the Fire Brigades Act, as being, and having been for many years, regarded as a "responsibility of government". This was so notwithstanding the existence of volunteer fire brigades. This conclusion was one which involved a degree of judicial notice and reflected the Court having regard to what Dixon J said in Perpetual, supra at 233, about the Court having regard to its own experience in the use of terms ([9] above). 47 The Court said (at 281) that each Board was: …a body constituted, funded and controlled by government andperforming functions on behalf of government. [Emphasis added] 48 The Court referred to a passage of Williams J in Maughan, supra at 397 (part of the extract in [31] above emphasised) and to the following passage from the judgment of Jordan CJ in O'Connell, supra, quoted by Street CJ in the ACOSS case, supra: …the question as to whether a benevolent institution is public in the sense in which that word is to be read in the exempting provisions referred to is less dependent upon the particular circumstances of its constitution and domestic government than upon the character and objects of its benevolence. What are the benefits which the institution dispenses, and to whom are the benefits extended, are inquiries the answer to which must be decisive on the question of whether or not the institution is public in the statutory sense. 49 The Court also referred to what Priestley JA said in the ACOSS case, supra at 275. 50 I respectfully note, however, that these comments were made by Williams J and by Jordan CJ in the context of rejecting the proposition that public control was a necessary element within the phrase (whether "public benevolent institution" or "public hospital") not in support of the proposition that public control was somehow antithetical to the meaning of either phrase. The Court recognised this, as it went on to say (at 282): The connection of a body with government may, in some circumstances, assist towards a conclusion that it is a public benevolent institution. But we think a purely governmental body is hardly ever likely to satisfy the tests which the authorities contain. 51 Thus, the Boards were characterised as "purely governmental", being "constituted, funded and controlled by government and performing functions on behalf of government". 52 The Court, dealing as it was with s 57A of the FBT Act, expressed the view that the terms of subs 57A(2) supported its view. The Court said (at 282): Section 57A(2) of the Fringe Benefits Tax Assessment Act itself suggests this. That subsection exempts benefits provided to employees whose duties of employment are exclusively performed in, or in connection with, a "public hospital that is a public benevolent institution", where the employer is a government body. The language chosen by the legislature clearly contemplates that some of these institutions (whose purpose is, of course, to alleviate people's suffering) may not be public benevolent institutions. Further, the terms of the subsection are consistent with the view that government bodies are ordinarily not thought of as public benevolent institutions. 53 The Court then referred to the meaning attached to the phrase "public benevolent institution" in the authorities and the relationship between the phrase and the ordinary meaning of "charity". It drew a distinction between, on the one hand, the ordinary meaning of the phrases "public charity" and the relief afforded by a "public benevolent institution" in the relief of poverty, suffering, distress and misfortune (as enunciated and illuminated in authorities such as Perpetual, supra, Public Trustee, supra, Lemm, supra and Maughan, supra) and, on the other hand, an entity or emanation of government using government funds to exercise a function of government with the same purposes or ends for the relief of such conditions in mind. At 283 the Court said: This is not to say that "public charity" is synonymous with "public benevolent institution", but the ordinary meanings of the two expressions are rather similar, in our view. It was put for the appellant that people whose buildings are being or have been destroyed by fire may be in need of urgent help and may be in personal danger, so being objects of benevolence. No doubt the bulk of the recipients of the moneys disbursed by way of pension payments and other assistance to Commonwealth pensioners are in need, also, but that is not to say that the Commonwealth in making those payments is acting as a "public benevolent institution". It is simply, like the appellant, using government funds to exercise a function of government. We are of the view that, whatever the precise limits of "public benevolent institution", the appellant falls well beyond them. 54 The Court dealt with the matter as one of ordinary meaning, but identified or illuminated the meaning of the phrase as not encompassing purely governmental bodies, using government funds to carry out functions of, or on behalf of, government even though those functions might fall within what judges have said, in respect of other institutions, are relevantly benevolent activities. 55 The Full Court returned to the phrase "public benevolent institution" (once again in the context of subs 57A(1) of the FBT Act), in Mines Rescue Board (NSW) v Commissioner of Taxation (2000) 101 FCR 91 (the Mines Rescue case). There the Mines Rescue Board (the Board) was a corporation established under the Mines Rescue Act 1994 (NSW)(MRA). It was expressly stated to be a statutory body representing the Crown in right of New South Wales (MRA s 2). The constitution and control of the Board was described by the Court as follows (at 92): There are seven directors of the appellant appointed by the Governor on the recommendation of the Minister. Three of the directors are persons nominated to represent the interests of mine owners; a further three are persons nominated to represent the interests of mine employees; one is required to be a person nominated by the Minister: MRA, s 10. The Minister may remove a director from office at any time: MRA s 10(5); Sch 1, cl 5(2). The Chief Executive Officer of the appellant is appointed by the Governor who may, at any time, remove a person from the office of Chief Executive but only after consultation with the Board: s12(1), (3) and Sch 2, cl 1(5). 56 The functions of the Board were described by the Court as follows (at 92): The appellant's functions are of two types. First, there are principal functions, summarised as the provision of rescue services for underground coal mines in New South Wales: MRA, s 6. Secondly, it has discretionary functions summarised as the provision of rescue services for other mines and the provision of non-rescue services for mines and industry both in New South Wales and elsewhere: ss 7 and 8. 57 Control of the Board by the government was described by the Court as follows (at 92-3): On the issue of ministerial control of the appellant, the Minister may give written directions to the directors concerning the exercise of the appellant's functions with which the directors must comply subject to following a review procedure: MRA, s 14. The appellant is under an obligation to provide the Minister with information concerning its activities and to keep the Minister informed of the general conduct of its activities: MRA, s 15.

Additionally, the appellant is required to prepare and deliver to the Minister a draft corporate plan for the financial year: MRA, s 16(1). There is an obligation on the appellant to consider any comments on the draft by the Minister and to deliver the completed plan to the Minister before the beginning of the financial year concerned: MRA, s 16(2). The appellant is obligated to exercise it functions in accordance with the corporate plan: MRA, s 16(3). Reference to the MRA shows that those obligations are subject to any requirement made by, or under the Act, including the requirements of a direction by the Minister under s 14: MRA, s 16(5). 58 Funding of the Board was described by the Court as follows (at 93): The appellant's activities are funded from the Mines Rescue Fund (the Fund) established and governed by the MRA under the control and administration of the appellant. Owners of coal mines are required to make contributions to the Fund, as prescribed by regulations, towards the appellant's expenses in carrying out its principal functions: MRA, s 31. Before a regulation is made fixing the contribution required by owners of coal mines, the Minister must certify that the amount to be prescribed for a particular coal mine is appropriate having regard to the matters listed in s 31(2) of the MRA. The appellant may charge fees for exercising any of its discretionary functions which are payable into the Fund. Also payable into the Fund is any money appropriated by Parliament for the purposes of the appellant: MRA, s 29(c). The appellant does not obtain and has not obtained any funds from government. 59 A Mines Rescue Brigade (the Brigade) was set up under the MRA to operate a mine rescue service under the control of the Board. The Court described the Brigade as follows (at 93): The Mines Rescue Brigade is established pursuant to s 37 of the MRA. This comprises persons who are employees of the owners of underground coal mines in New South Wales who, whilst acting as a member of the Brigade, are regarded as being employed by the appellant: MRA, s 59(2). While they are engaged in mine rescue work or training for that work they are entitled to be paid such fees and allowances as the appellant, with the concurrence of the Minister, determines. The function of the Brigade is to provide, under the control and direction of the appellant, a mine rescue service for responding to, and dealing with, emergencies arising at underground coal mines in New South Wales, and at other mines. The Minister has the power to determine an appeal against a determination of the appellant with respect to the number of employees required to be made available to serve as members of the Brigade and as to the equipment and facilities to be made available by the owner for use by the Brigade: MRA, ss 40 and 41. 60 The appeal was conducted on the basis that the Fire Brigades case, supra, could be distinguished. (Though it was submitted (see 94-5) that the support the Full Court had drawn from the terms of subs 57A(2) (see [52] above) was misplaced in the light of the relevant paragraphs of the explanatory memorandum.) 61 The primary judge (Hely J) had reached his conclusion that the Board was not a "public benevolent institution" on two distinct, but related, bases. First, Hely J drew from the reasons of Thomas J in the RSPCA (Q'd) case, supra, that the authorities imported into the meaning of the phrase "public benevolent institution" "an underlying conception of 'charity' or 'gratuity' as a fundamental foundation" and that the authorities had confined the concept of "public benevolent institution" to institutions "whose primary activities are eleemosynary". Hely J concluded (quoted in 101 FCR at 95): "In short the authorities propound, and I adopt, a notion of benevolence which involves an act of kindness, or perhaps most particularly, the rendering of assistance voluntarily to those who, for one reason or another are in need of help and who cannot help themselves." [Emphasis added by the Full Court] 62 Hely J considered that the appellant could not be characterised as a "public benevolent institution" as there was no element of "charity" to miners in the provision of rescue services. Hely J added, in this regard, that the Board's actions and functions were predicated by statutory obligation which was fatal to this necessary notion of charity. 63 Secondly, Hely J in effect applied the Fire Brigades case, and concluded as follows (recorded in 101 FCR at 95): Here the applicant is a governmental body, under the control of the Minister, brought into existence to give effect to government policy that owners of underground coal mines should fund, man and equip the provision of a rescue service capable of dealing with emergencies in underground coal mines. The provision of a rescue service by a statutory body incorporated to discharge that function is outside the ordinary conception of benevolence. 64 The appeal was brought contesting both grounds of the reasoning of Hely J. The Commissioner of Taxation did not contest the first ground ([62] and [63] above). In the light of the views of Gobbo J in the Cairnmillar Institute case ([43] above) and the authorities discussed by Gobbo J in that case, the position of the Commissioner, if I may put it this way without disrespect to Hely J, was understandable. (Though, if I may say so, I do not read the judgment of Hely J as saying that any payment for services is fatal. It is unnecessary to deal with his Honour's reasons; it is sufficient if I say that it is not at all evident to me that Hely J was saying anything otherwise than in conformity with prior authorities.) The appeal in the Mines Rescue case was contested, as these proceedings are contested before me, upon what might be referred to as the Fire Brigades case ground. The appellant in the Mines Rescue case put, in written submissions, but did not pursue orally, the submission that the Fire Brigades case was wrong and should not be followed. The Court therefore accepted the correctness of that case. Of course, I am bound by both the Fire Brigades case and the Mines Rescue case. 65 The Court in the Mines Rescue case expressed the ratio of the Fire Brigades case, as accepted by the parties before it, as: …where a body was "purely a government body", so that it was exercising a function of government, it was not a "public benevolent institution". 66 In the Mines Rescue case the appellant Board sought to distinguish the Fire Brigades case on four grounds. First, it was said that the provision of a mine rescue service, unlike the controlling and extinguishing of fires in a metropolitan area, was not regarded as a government responsibility. In dealing with this submission the Court expressed the view that the notion of activities being the "responsibility of government" was "not one which could comfortably be made by a court today except in very limited circumstances". The Court noted that the Full Court in Fire Brigades case appeared to take judicial notice of facts to arrive at its views. The Court also noted the increase in "privatisation" of what have been for many years regarded to be activities the responsibility of government, for example hospitals and health services. The Court referred to the judgment of Mason CJ, Deane, Toohey and Gaudron JJ in Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145, 164 and the judgment of Gibbs J in Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577, 580 and P W Hogg Liability of the Crown (2nd Ed) pp 248-50. The Court regarded passages from those two judgments as directly applicable to the process of characterisation of the activities of a body as a "responsibility of government". As to the Accident Compensation Tribunal case the Court said of the judgment of Mason CJ, Deane, Toohey and Gaudron JJ: …the majority took into account whether the matters in issue were functions "ordinarily perceived as governmental in nature or as involving the interests of government". 67 The Court also referred to the following passage of Gibbs J in Committee of Direction of Fruit Marketing, supra at 580: The expression "authority of a State" refers to a body which exercises power derived from or delegated by the State, but the fact that a body is established under State law and possesses power conferred upon it by State law will not necessarily mean that the body is an authority of a State. For example, a private company, such as a gas company, which provides a public service for profit, may be set up under the company laws of a State, and may be given special statutory powers to enable it to carry on its undertaking, but it does not thereby become an authority of a State. The words "authority of a State" naturally mean a body which is given by the State the power to direct or control the affairs of others on behalf of the State, that is, for the purposes of and in the interests of the community or some section of it. In some cases it may be decisive that the body concerned is given exceptional powers of a kind not ordinarily possessed by an individual or a company, and that those powers are intended to be exercised for a purpose that would ordinarily be regarded as a purpose of government. On the other hand, in some cases it may be decisive that the body is conducted in the interest and for the profit of its members. In all cases, however, it is necessary to have regard to all the relevant circumstances in order to determine the character of the body in question. 68 Thus, the elements to be ascertained in understanding whether an activity was a "responsibility of government" or whether a body was governmental such that its activities were the responsibility of government were the perception of the function as governmental in nature or as involving the interests of government; the exercise of power directed from or delegated by the state to direct or control the affairs of others on behalf of the state for the purposes or interests of the community or some section of it. In this context, the words of Gibbs CJ (with which Murphy, Wilson and Brennan JJ agreed) in Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282, 291, are perhaps worthy of note: It has more than once been said in this Court that "there is evidence of a strong tendency to regard a statutory corporation formed to carry on public functions as distinct from the Crown unless parliament has by express provision given it the character of servant of the Crown": Launceston Corporation v Hydro-Electric Commission (1959) 100 CLR 654, at p 662; State Electricity Commission (Vict) v City of South Melbourne (1968) 118 CLR 504 at p 510. All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide in express terms that a corporation shall have the privileges and immunities of the Crown, and where it does not do so it should not readily be concluded that it had that intention. 69 The Court in the Mines Rescue case returned in due course to the proper characterisation of the activities of the Board. See [74] below. 70 The second claimed point of distinction from the Fire Brigades case was that the Board was not funded by the Government. No relevant difference was perceived by the Court between the compulsory contributions under the MRA ([58] above) and the compulsory contributions under the Fire Brigades Act which the Full Court had characterised as a tax. 71 The third claimed point of distinction was the character and object of the benevolence of the Board. The Court said (at 100) that it was not open to the primary judge to determine the matter by the character and number of objects of the "benevolence": In our opinion, this is not a case where it was open to the primary judge for the matter to be determined by the character and number of the objects of the benevolence. There is a considerable contrast between the objects of benevolence in Legal Aid Commission (Vic) v Commissioner of Pay-roll Tax (Vic) (1992) 23 ATR 1148; 92 ATC 2053 and Tangentyere [Council Inc v the Commissioner of Taxes (NT) (1990) 99 FLR 363], for example, and the present case. 72 It is not entirely clear to me whether this view was based on the governmental character of the Board and its activities (thus necessarily denying the character of benevolence, even if the relief of suffering could be found within the activities) or upon the absence of the relief of matters of the kind discussed in the cases such as poverty, distress, suffering etc. Conformably with the balance of the judgment, and given the character of the activity and the lack of any discussion in the judgment about the width of the class of people relieved, I would conclude that the former, not the latter, was the reason the Court rejected this third claim of distinction. 73 The fourth point of distinction was an attack made upon the support drawn by the Court in the Fire Brigades case from subs 57A(2) of the FBT Act (see [52] and [60] above). In dealing with this submission the Court put the Fire Brigades case into context. In doing so, it must be taken that what the Court said about the ratio of the Fire Brigades case (see [65] above) should be read as qualified by the following (at 100): The reference to s 57A(2) was but one element in the reasoning of the Full Court on the matter. Additionally, the Full Court appears to have reached the conclusion in any event that "a purely governmental body is hardly ever likely to satisfy the test which the authorities contain". The appellant's case does not challenge that proposition, only its application in this case. The reference to s 57A(2) was said to suggest that view but, on a reading of the reasons as a whole, it is not the sole source of that view. In any event, the point taken for the appellant answers only the first of the conclusions reached by the Full Court in the Fire Brigades case by reference to the subsection. It does not touch the second reason that the terms of the subsection are consistent with the view that government bodies are ordinarily not thought of as public benevolent institutions. It is important also to note that the Full Court was not saying categorically that a purely government body could never satisfy the tests to become a public benevolent institution. What the Full Court said was that it would be "hardly ever" that such would be likely to be the case. Furthermore, the relativities were emphasised by the Full Court in stating that "in some circumstances" the connection of a body with government may assist towards a conclusion that it is a public benevolent institution. Those statements leave open the real possibility, reflected on a reading of the whole of the reasons of the Full Court in the Fire Brigades case, that the issue of characterisation must be approached with regard to all the circumstances. [Emphasis added] 74 The Court then returned to the question of the governmental characterisation of the Board. It concluded that the framework governing the Board was more governmental in character than that at issue in the Fire Brigades case. It said the following (at 101): The Board is established as a statutory body representing the Crown: s 5(2). One director is nominated by the Minister: s 10(3)(c). Any director may be removed by the Minister: Sch 1, cl 5(2). The Chief Executive Officer may be removed by the Governor after Consultation with the Board: Sch 2, cl (5). There is the Minister's power to give written directions on Board functions: s 14(1). The Board works to a corporate plan after ministerial input to it and keep the Minister informed: s 16(2) and (6). Board staff may be drawn from governmental entities: s 25. Governmental authority raises contributions for the trust fund: s 31. The Minister has potential for involvement in the manner of investment (s 34(b)(ii)) and payment of fees to members of the Brigade (s 39(3)). The MRA itself is subject to ministerial review: s 51. The combined effect of these provisions is such as to result in the appellant being characterised as governmental. 75 Having so characterised the Board as governmental in character, conformably with what it said at 100 (see [73] above), the Court still had to answer the question as to whether the Board could fall within the phrase "public benefit institution". It said: There still remains the question whether, being governmental, the appellant should nevertheless have been found to be a public benevolent institution. In our view the degree to which the appellant is properly characterised as governmental precluded a finding to that effect. 76 There were simply no characteristics or circumstances relevant to be added to the characterisation of the Board as governmental to bring the Board within the meaning of the phrase. 77 Based on the authority of the Fire Brigades case and the Mines Rescue case I am bound to undertake an enquiry concerning the Ambulance Service involving the following questions: (a) whether it is a "government body" or "purely governmental body"; (b) whether it is a "emanation of government"; (c) whether the functions which it performs are regarded as "governmental responsibilities"; and (d) whether the functions it performs are "functions on behalf of government". 78 This enquiry is to be undertaken by reference to the constitution, funding and control of the body and a process of characterisation of the functions undertaken as governmental or not. 79 The enquiry is analogous to those undertaken in ascertaining whether a body would be seen as a "public authority", for taxation or other purposes: Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation, supra at 168-9; Renmark Hotel Inc v Federal Commissioner of Taxation (1949) 79 CLR 10, 18; Western Australian Turf Club v Federal Commissioner of Taxation (1978) 139 CLR 288, 295-99; Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation (1992) 175 CLR 442, 450-51 (noting that Stephen J in Western Australian Turf Club, supra at 297, described the "indefinite nature" of the term "public authority"); or whether a body is a governmental "instrumentality", being a different enquiry to whether a body has the immunities of the Crown or whether a body is the servant or agent of the Crown: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 133; Re Anti-Cancer Council, supra at 448; and Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219, 230; or whether a body is or represents the Commonwealth or the State for purposes under the Constitution or the Judiciary Act 1903 (Cth): State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639; and State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 282-84. The difficulties of this kind of enquiry and what might be said to be the limitations of the analysis based on constitution, control, funding and functions are discussed by Professor Friedmann in "Legal Status of Incorporated Public Authorities" (1948) 22 ALJ 7. 80 The enquiry called for here - whether a body satisfies the meaning of a phrase - is more indeterminate in its frame of reference than the enquiries just mentioned, because it is said not to be a legal question based on defined criteria or a question the answer to which is capable of being divined from the intention of Parliament in a statute, but, rather, to be part of an enquiry as to meaning or usage of a phrase in the language, though one illuminated by legal authority: cf Street CJ in the ACOSS case, supra ([39] above). 81 It is therefore necessary to examine the applicant by reference to its constitution, control, funding and functions and then, in the light of those matters, turn to whether in ordinary usage it is encompassed by the phrase "public benevolent institution".

The New South Wales Ambulance Service 82 In discharging the task referred to in [81] above, it is relevant to understand not only the present day constitution and function of the applicant, but also how it has come to the position it has now. 83 A brief history of the applicant was put into evidence which, together with an understanding of the course of relevant legislation, provides an adequate foundation for an understanding of the applicant's current position. 84 In 1881 the Board of Health established a service to transport infectious disease cases to isolation wards. After 1887, in Sydney, a civilian ambulance brigade was established which provided services at major sporting events. The Army Medical Corps, however, bore the brunt of dealing with most casualties. In 1894 a bicycle ambulance service was provided by the Redfern Bicycle Club. In 1895 the Civil Ambulance and Transport Brigade commenced operations from a former police station in George Street, Sydney. By 1904, when it changed its name to the Civil Ambulance and Transport Corps, the brigade had opened many stations in Greater Sydney, all operating as separate services. At the beginning of the First World War the equipment and vehicles of the Corps were given to the State Government. There was no evidence before me as to the constitution and rules (if any) governing the entities conducting this early activity. But from the fact of this donation in 1914 it would appear that this early activity, save for that of the Army, was not controlled by the Colony or State of New South Wales. In 1919, the year of the influenza epidemic, the Ambulance Transport Service Act 1919 (NSW) (the 1919 Act) was passed. The history placed in evidence records that in 1919 "society began to rely on an ambulance service being there in time of need." The preamble to the 1919 Act stated the following: An Act to make better provision for rendering first aid to, and for the transport of sick and injured persons, and for that purpose to establish a board with certain powers and duties; and for purposes consequent thereon or incidental thereto. 85 A board was established by s 3 of the 1919 Act in the following terms: For the purpose of organising and controlling the work of rendering first aid to and the transport of sick and injured persons a board shall be established which shall under the name of the New South Wales Ambulance Transport Service Board be a body corporate, and have a common seal, and in its corporate name be capable of holding property of any description and of suing and being sued. The members of such board shall not be paid but shall give their services gratuitously. 86 The membership of the board was partly composed of appointments by the Governor but largely composed of persons elected by existing brigades, which I take it were non-governmental voluntary organisations. Section 4 provided for membership of the board in the following terms: (1) The board shall until reconstituted as hereinafter provided consist of members who shall be appointed and elected as follows:- (a) A chairman and two members to be appointed by the Governor; (b) Three members to be elected by the St John Ambulance Brigade; (c) Three members to be elected by the Civil Ambulance Transport Brigade; (d) One member to be elected by the Canterbury District Ambulance Brigade; and (e) One member to be elected by the Newtown and District Ambulance Brigade. (2) The members of the board as constituted under this section shall hold office for three years, and shall then retire, but shall be eligible for re-appointment or re-election. 87 The Governor could for sufficient cause suspend or remove any board member (s 8). Provision was made for the funding of the board from Consolidated Revenue, and also from contributions from the public which appeared to be matched by subsidies from the Government (ss 2, 12, 19 and 20). Property vested in or held on trust for any of the brigades listed in s 4 was transferred to and vested in the board for the purposes of the 1919 Act (s 16). The board was given power to appoint or employ and remove or dismiss officers and employees as it saw fit (s 11). With one exception (the St John Ambulance Association) it was made unlawful for anyone to carry on within the boundaries of any district any operation similar to those carried on by the board or by district committees under the board (s 21). 88 From time to time after 1919 amendments were made to the 1919 Act. In 1924 s 21A was inserted which made it unlawful for any person to collect funds by "public appeal" (defined generally, but so as to expressly include "art unions, carnivals, bazaars, or fancy fairs") except with the sanction of the board. I would take from this and the continuation of the notion of "contributors" (set out in s 14A after 1924) and from the continued recognition of contributions from the public and government funds, that funding for ambulance services was envisaged as coming from Consolidated Revenue and from the public. 89 Also in 1924, further provision was made for district committees (s 12). 90 In 1956, the constitution of the board was widened by substituting for the existing s 4 the following list of members: (1) The board shall consist of twenty-one members who shall be appointed by the Governor. Of the members so appointed - (a) three shall be nominated by the Minister, one of whom shall be the chairman of the board; (b) one shall be nominated by the Saint John Ambulance Brigade (Overseas) New South Wales District; (c) one shall be nominated by the Saint John Ambulance Association, New South Wales Centre; (d) one shall be a qualified ambulance transport man nominated by the Hospital Employees' Association of New South Wales; (e) two shall be nominated by the Ambulance Superintendents Association; (f) one shall be the Superintendent of the Central District; (g) two shall be elected by the Committee of the Central District; (h) two shall be elected by the members of district committees (other than the Central District Committee) the headquarters of which are situated in the County of Cumberland; (i) two shall be elected by the members of district committees the headquarters of which are situated in the County of Northumberland; (j) two shall be elected by the members of district committees the headquarters of which are situated in the Northern Zone established under this Act; (k) two shall be elected by the members of district committees the headquarters of which are situated in the Central Zone established under this Act; (l) two shall be elected by the members of district committees the headquarters of which are situated in the Southern Zone established under this Act. … 91 In 1956, a new s 7 was inserted which was in the following terms: The provisions of the Public Service Act, 1902, or of any Act amending that Act, shall not apply to the appointment of members of the board, and such members shall not in their capacity as members of the board be subject to the provisions of any such Act. 92 In 1956 provision was made for extending the board's activities beyond the Counties of Cumberland and Northumberland to zones known as the Northern Zone, the Central Zone and the Southern Zone. 93 Also in 1956, s 18A was introduced which provided for inquiry into the conduct of district committees - their stations, plant, equipment and accounts by the board. In such inquiries, the board would, if the Minister approved, have the powers, authorities, protections and immunities conferred by the Royal Commission Acts. After such inquiry, in certain circumstances, the Governor could remove those controlling districts and appoint an administrator "of the business and operations of the district of such district committee" (s 18B). 94 In 1972, the 1919 Act was repealed in whole. It was replaced by the Ambulance Service Act 1972 (NSW) (the 1972 Act). The preamble to the 1972 Act was as follows: An Act to re-organise the provision of ambulance services throughout New South Wales; for this purpose to constitute the New South Wales Ambulance Board and to define its powers, authorities, duties and functions; to provide for the establishment of a contribution scheme; to repeal the Ambulance Transport Service Act, 1919, and certain other enactments; and for purposes connected therewith. 95 There was constituted a corporation known as the "New South Wales Ambulance Board" (the Board) (subs 5(1)). Subsection 5(2) provided for the function, constitution and control of the Board in the following terms: (2) The Board - (a) shall have and may exercise and perform the powers, authorities, duties and functions conferred or imposed upon it by or under this or any other Act; (b) shall in the exercise and discharge of its powers, authorities, duties and functions (except when it makes a report or recommendation to the Minister) be subject to the control and direction of the Minister; and (c) shall consist of ten members appointed by the Governor on the nomination of the Minister, one of whom shall, in and by the instrument of his appointment, be designated as the chairman. 96 The members of the Board were not subject, however, to the provisions of the Public Service Act 1902 (NSW). 97 Officers and employees in connection with the discharge by the Board of its functions were dealt with in two ways. First, under subs 9(1), the Governor could under the Public Service Act 1902 appoint a secretary to the Board and such other officers and employees as were necessary for the Board to carry out its functions, except for employees dealt with under s 10. Secondly, under s 10 the Board could appoint and employ employees for carrying out powers, authorities, duties and functions relating to ambulance services as may be prescribed. Such employees were employed at the will of the Board only, at wages fixed by the Board. The Board was also empowered to make use of employees of a Government Department on public authority (s 11). It was empowered to appoint "honorary ambulance officers". 98 The powers, authorities, duties and functions of the Board were set out in s 18 of the 1972 Act as follows: The Board - (a) shall provide, conduct, operate and maintain such ambulance services as it deems necessary from time to time; (b) may enter into any agreement or arrangement with any other person to provide, conduct, operate and maintain ambulance services; (c) may co-operate with or provide assistance to any person or organisation for the purpose of providing, conducting, operating and maintaining ambulance services; (d) shall control, direct and co-ordinate the activities and operations of district committees; and (e) may do such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise of its powers, authorities, duties and functions under this or any other Act. 99 Section 19 dealt with contracts as follows: Any contract entered into by the board shall be deemed, for the purposes of the Constitution Act, 1902, to be a contract or agreement for or on account of the Public Service of New South Wales. 100 Part III of the 1972 Act provided for district committees to undertake the tasks identified in s 27: A district committee shall - (a) give advice to the Board concerning all matters involving the provision, conduct, operation and maintenance of ambulance services relating to the district of that district committee; and (b) exercise and may carry out such powers, authorities, duties and functions as the Board may delegate to it from time to time. 101 The district committees were elected every three years by contributors to the scheme set up under Part IV of the 1972 Act who were ordinarily resident in the district of the relevant district committee (s 22). Thus, the 1972 Act provided for community participation in the operating and functioning of ambulance services. 102 Part IV of the 1972 Act provided for the Board to establish and conduct a contribution scheme for the provision of ambulance benefits to contributors and their dependants. 103 Part V provided for finance. Section 38 provided as follows: The Treasurer may, out of moneys provided by Parliament, from time to time make such contributions to the funds of the Board as may be determined by the Treasurer. 104 Provision was made, amongst other things, for the keeping (s 39) and auditing (s 40) of accounts, for financial accommodation and borrowing of funds (ss 41 and 43), and for the investment of funds (s 42). 105 The 1972 Act (by s 46) also prohibited the provision of ambulance services without the consent of the Board; but this provision did not apply to the parties set out in subs 46(2): Subsection one of this section shall not apply to - (a) the Board; (b) the Saint John Ambulance Association and the Saint John Ambulance Brigade (Overseas) New South Wales District in respect of operations similar to the operations lawfully carried on by those bodies immediately before the appointed day; (c) the Royal Flying Doctor Service of Australia (NSW Section); (d) the committee of a district constituted under the Mines Rescue Act, 1925; or (e) any prescribed person or class of persons. 106 The 1972 Act (by s 47) also prohibited the raising of funds for ambulance services, with certain exemptions including insurance. 107 The 1972 Act did not expressly identify the Board as representing the Crown. 108 In 1976, the Ambulance Services Act 1976 (NSW) (the 1976 Act) was passed. It repealed in whole the 1972 Act. The preamble to the 1976 Act was in the following terms: An Act relating to the provision of ambulance services in New South Wales; to make provision for the acquisition of property by the New South Wales Ambulance Board; to amend the Local Government Act, 1919, and certain other Acts in certain respects; to repeal the Ambulance Service Act, 1972, and to make prior provisions consequential thereon. 109 The major change wrought by the 1976 Act was the incorporation of such ambulance services as had been provided by the Board under the 1972 Act into the Health Commission of New South Wales (the Commission). Subsection 5(1) of the 1976 Act provided as follows: The Commission shall, on and after the appointed day, continue to provide, conduct, operate and maintain such ambulance services as were provided, conducted, operated and maintained by the Board immediately before the appointed day subject to such alterations as it from time to time deems necessary in the public interest. 110 Part III of the 1976 Act provided for the Commission to establish and conduct a contribution scheme for the provision of ambulance benefits to contributors and their dependants. 111 Finance was provided for by the setting up of a Special Deposit Account at the Treasury called the "Ambulance Services Fund" (s 10). 112 The Minister could, by notice in the Gazette, fix a scale of fees in respect of ambulance services provided by the Commission (s 12). 113 Section 13 provided for the prohibition on the provision of ambulance services with the exceptions provided by subs 13(2) in terms equivalent to subs 46(2) of the 1972 Act ([105] above). 114 Section 14 prohibited, without the consent of the Commission, the collecting of funds from the public for ambulance services with exemptions in terms equivalent to those contained in s 47 of the 1972 Act ([106] above). If consent were given by the Commission, subss 14(3) and (4) provided as follows: (3) Where the Commission gives a consent under subsection (1) it shall specify - (a) the area in which any money collected pursuant to that consent shall be used; and (b) the special project account into which any money collected pursuant to that consent shall be paid. (4) The area to which a consent referred to in subsection (3)(a) relates may be the whole of the State of New South Wales or such part thereof as is specified by the Commission. 115 The Governor could make regulations under the Act (s 16). 116 The Commission was a corporation established under the Health Commission Act 1972 (NSW) (the HC Act). The preamble to the HC Act was in the following terms: An Act to constitute the Health Commission of New South Wales and to define its powers, authorities, duties and functions; to dissolve The Hospitals Commission of New South Wales and the Board of Health and to abolish the Department of Health; to amend the Public Health Act, 1902, the Public Hospitals Act, 1929, and certain other Acts; and for purposes connected therewith. 117 Section 4 of the HC Act was in the following terms: (1) There is hereby constituted a corporation under the corporate name of the "Health Commission of New South Wales". (2) The Commission - (a) shall have and may exercise and perform the powers, authorities, duties and functions conferred or imposed upon it by or under this or any other Act; (b) shall, for the purposes of any Act, be deemed to be a statutory body representing the Crown; and (c) shall, in the exercise and performance of its powers, authorities, duties and functions (except in relation to the contents of a recommendation or report made by it to the Minister), be subject to the control and direction of the Minister. 118 Section 6 of the HC Act provided for the allocation of responsibilities to members of the Commission in instruments of appointment, subs 6(1) providing as follows: The members shall be appointed, by the same instrument as, or by a separate instrument from, the instrument by which they are appointed as members to offices designated respectively as - (a) Chairman; (b) Commissioner for Personal Health Services; (c) Commissioner for Environment and Special Health Services; (d) Commissioner for Manpower and Management Services; and (e) Commissioner for Finance and Physical Resources. 119 The members of the Commission were full-time officials: subs 7(1). Their remuneration was to be in accordance with the Statutory and Other Offices Remuneration Act 1975 (NSW). 120 The powers, authorities, duties and functions of the Commission were set out in subs 18(1). I will not set out the whole of that subsection. However the following parts of it reveal the broad governmental nature of it as the successor to the New South Wales Department of Health: (1) For the purpose of promoting, protecting, developing, maintaining and improving the health and well-being of the people of New South Wales to the maximum extent possible having regard to the needs of and resources available to the State, the Commission shall have and may exercise and perform the following powers, authorities, duties and functions:- (a) to initiate, promote, commission and undertake surveys and investigations into the health needs of the people of New South Wales, the resources of the State available to meet those needs and the methods by which those needs should be met; (b) to inquire into the nature, extent and standards of the health services, facilities and personnel required to meet the health needs of the people of New South Wales and to determine the cost of meeting those needs; (c) to plan the provision of comprehensive, balanced and co-ordinated health services throughout New South Wales; (d) to recommend to the Minister the programmes and methods by which the health needs of the people of New South Wales may be met; (e) to advise, report to and make recommendations to the Minister in respect of any matter relating to the health of the people of New South Wales; (f) to provide, conduct, operate and maintain and where necessary to improve and extend any health service or any ancillary or incidental service and to construct any buildings or works necessary for or in connection with any such service; … (h) to undertake, promote and encourage research in relation to any health service; … (l) to promote and facilitate the raising of funds by means of public appeal or otherwise by any body, institution, association or person for the purpose of the provision of health services; (m) to promote and facilitate a system of health care for the people of New South Wales provided by private bodies, institutions, associations and persons, as well as by the Commission and other public bodies; … 121 The above was the position immediately prior to the passing of the current governing legislation, the Ambulance Services Act 1990 (NSW) (the 1990 Act). Before dealing with this legislation it is fair to observe, I think, that the changes to the regimes governing ambulance services since before 1919 reflect a gradual shift from community provided services, to governmental involvement in, and to a degree ultimate control of, services, but in a context of significant community participation, and finally, in 1976, to the absorption of the ambulance service into an entity representing the Crown which took over the role of a Department of State.

the governing statute - the 1990 Act 122 The applicant is a corporation established under the 1990 Act and represents the Crown (s 4). The applicant's affairs are controlled by the Ambulance Service Board (the Board) (ss 5 and 6). The Board (and so the affairs of the applicant) is subject to the control and direction of the Minister (s 7). 123 All the directors of the Board are appointed by the Minister, except one director elected by staff and the Chief Executive Officer (CEO) (s 8). The CEO is appointed by the Governor and is subject to Part 2A of the Public Sector Management Act 1988 (NSW) dealing with "public sector executives". The applicant cannot remove the CEO from office (subs 9(3)). The Governor may remove any director (s 11). 124 The applicant's primary function is to provide, conduct, operate and maintain ambulance services (par 12(1)(a)), which expression means services relating to the work of rendering first aid to, and transport of, sick and injured persons (see the definition of "ambulance services" in subs 3(1)); it also has other functions which are largely incidental (pars 12(1)(b)-(i); and subss 12(2) and (3)). 125 The conditions of employment, including salaries, wages and remuneration of the employees of the applicant (other than the CEO) are to be determined from time to time by the Health Administration Corporation, except insofar as provision is otherwise made by law (subs 15(1)). The Health Administration Corporation is itself a statutory body representing the Crown: see par 9(2)(f) of the Health Administration Act 1982 (NSW). Staff of the applicant are not, however, covered by Part 2 of the Public Sector Management Act. The applicant is also able to appoint honorary ambulance officers (s 14). 126 The applicant may, with the approval of the Minister, for the purpose of the exercise of its functions under the Act, acquire land (subs 16(1)); further, the applicant may not dispose of land by sale, lease, mortgage or otherwise except with approval of the Minister. 127 The applicant may make and enter into contracts or agreements with any person for the performance of services, or for the supply of goods, plant, machinery or material, with respect to the exercise of its functions (subs 19(1)), and any such contract or agreement is to be taken, for the purposes of the Constitution Act 1902 (NSW), to be a contract or agreement for or on account of the Public Service of New South Wales. 128 The applicant is to invest its funds in the manner authorised by the Public Authorities (Financial Arrangements) Act 1987 (NSW) or as approved by the Treasurer (subs 20(1)). 129 The Minister may fix a scale of fees in respect of ambulance services provided by the applicant, and amend or revoke any scale of fees so fixed (pars 22(1)(a) and (b)). 130 There continue to be provisions prohibiting persons other than the applicant, St John Ambulance and others (see [105], [106], [113] and [114] above) from carrying on an ambulance service and prohibiting persons raising money for ambulance services (ss 23 and 24). However, notably, both those prohibitions are subject to the consent, not of the applicant or the Board, but of the Director-General of the Department of Health. 131 The Governor may make regulations with respect to various matters, including the furnishing of information and reports to the Minister, Director-General of the Department of Health or any other person by the applicant (par 30(1)(b)), the control and governance of the employees of the applicant and any other matter or thing to ensure the maintenance of discipline and efficiency of those employees (par 30(1)(c)). 132 Regulations have been made which provide for matters such as duties of employees, including the duty to obey orders and to wear a uniform; entitlements of employees who are subpoenaed or called as witnesses; employee discipline; and matters related to the election of the elected staff director, including administrative matters, the calling of elections, nominations, ballots, the scrutiny and counting of ballots and various offences (Ambulance Services Regulations 2000).

the activities of the applicant 133 Evidence was led before me as to the activities of the applicant. None of it was contested. The activities involve rescue, administration of emergency medical attention and transport to and from hospital. I am content to accept that many of those employed by the applicant discharge their tasks with care, kindness, compassion and with a recognition of the dignity and needs of individuals. To a degree, no doubt, this is a product of the nature of the calling and the long and proud history of service to the public by ambulance officers. 134 The service is represented on many community committees, especially in areas relevant to the need for, and provision of, emergency medical services. To a not insignificant degree, such matters reflect a spirit of community service which, I think it fair to say, infuses the applicant. 135 It is also fair to say that the activities of the applicant in the provision of services very often give relief to distress or suffering. That is inherent in the nature of the services. 136 Considerable emphasis was placed on the generally caring, dutiful and ethical approach of ambulance officers. I accept that most attempt to, and do, live up to the high ideals identified in the code of ethics put in evidence. 137 The applicant and external organisations recognise the diligent and meritorious service of ambulance officers. I accept that ambulance officers are called on to deal with stressful, difficult and sometimes dangerous situations with skill, courage and compassion and in those circumstances minister relief to members of the public in need of care by reason of distress and suffering. 138 The applicant engages in educational activities promoting a knowledge of first aid, both at schools and in the wider community. 139 There are 85 honorary ambulance officers, 2,300 uniformed officers and about 375 administrative and support staff. 140 The applicant's activities are funded, in part, from user charges (as to about one quarter); government contributions meet the balance of expenses, apart from donations. Fees are charged for transport, but not for the ministering of first aid or medical treatment. 141 Insurance can be taken out against the contingency of ambulance fees. This insurance is available via a scheme under the Insurance Levies Act 1982 (NSW) or through private health insurance. Payments by insurers are placed into Consolidated Revenue, not given to the applicant. 142 There are particular arrangements for bulk-billing in respect of the Motor Accidents Authority and relevant insurers under the Motor Accidents Act 1988 (NSW) which it is unnecessary to recount. Similarly, there are arrangements with the Department of Veterans' Affairs which allow the applicant not to charge veterans. 143 The applicant charges a fee for attendance at commercial profit making events such as professional rugby league matches and horse racing, but it does not charge for attendances at non-commercial or community events such as the Gay and Lesbian Mardi Gras and Anzac Day services. 144 The applicant maintains a Special Purposes and Trust Fund for, inter alia, donations, legacies and bequests. Apart from money donations (directly made or through community fundraising), there are "donations in kind", such as cordless telephones or computers. 145 The amount of donations varies from year to year. In the financial year ended 30 June 1997 the total expenses of the applicant were $192,454,000 (including amortisation and depreciation). This was met by $51,438,000 of charges, $134,920,000 of government funds, $648,000 of donations, gifts and contributions, $272,000 from interest on investments and $2,061,000 in sundry revenue. 146 Thus, not insignificant donations are made by the public, though, in the context of the operating expenses of the applicant it is not material to the overall financial viability of the organisation. That said however, it reflects a degree of perception in the community that the organisation is one whose tasks and activities are deserving of voluntary and gratuitous support. 147 Whilst the Minister appoints the directors and the Governor can dismiss them, and whilst the Board is subject to the control and direction of the Minister, it is worthy of note who the directors are. They are not, with the exception of the CEO, public servants. They are people from different walks of life in the community who have managerial or other qualifications thought to be adequate for the task of running an ambulance service. Without being exhaustive and without naming individual directors, the following are the backgrounds taken from the annual reports in evidence of some of the directors in 1996, 1997 and 2000: (a) Chairman of the Public Service Board, former Chairman of the Manly Warringah Area Health Service, former Foundation National Chairman Workskill Australia and former New South Wales Chairman of the Duke of Edinburgh Youth Award Scheme; a Director of Qantas since 1983. (b) A lawyer with an extensive practice in sports law, business law and local government and planning law. He is a senior partner of a law firm, who has more than twenty-five years experience as a community representative in the public health care sector. He has held numerous positions including Chairman of the Directors of the Hospitals Contribution Fund of Australia (1983-1988), National President of the Australian Healthcare Association (1986-1988) following two terms as President of the New South Wales Branch and Chairman of several public hospitals and an Area Health Board; presently a member of the Directors of Aus Health International. (c) A person with extensive experience in business and marketing and currently Chairman of an advertising agency. He is also a Member of the Australian Society of Clinical Hypnotherapists and holds a New South Wales Ambulance Board Long Service Medal for honorary ambulance work which commenced in 1954. (d) A farmer and grazier, operating a family business in Forbes and having business interests in Sydney; a Director of the Skillshare Training Scheme and of the Parkes/Forbes Land Board and Carrowobitty Landcare. He also holds several trade certificates and is a qualified accountant. (e) Executive Coach and Management Consultant, with over fifteen years experience as a senior executive and CEO leading change in government and community sectors; a Director of the Sydney Harbour Foreshore Authority and chair of its Audit and Risk Management Committee. He is also a Trustee of Young Achievement Australia. (f) A specialist in human resource management and industrial relations and having a wealth of practical experience in the retail, services, manufacturing and energy sectors. (g) A social worker who has a long history of involvement in ethnic affairs, refugee and migrant settlement and health campaigns. She was the Executive Director of the Hong Kong Council on Smoking and Health and a former President of the Australian Chinese Community Association; the Secretary of the Australian Nursing Home Foundation and a member of the New South Wales Board of Adult Education. She directs her own consultancy company. (h) The chief representative for Australia, New Zealand and the South Pacific for Banca Commerciale Italiana. She is a former physics lecturer at the University of Sydney and has worked for the CSIRO and as a visiting Fellow at the Massachusetts Institute of Technology in Boston USA; a member of the Executive Committee and the National Congress Committee of the Australian Society of Corporate Treasurers, past president of the Overseas Bankers' Association of Australia, and a board member of various public companies. (i) The Chief Executive Officer of the Walgett Aboriginal Medical Service and an executive member of the Aboriginal Health and Medical Research Council (NSW). (j) A Business Development and Financial Adviser since his retirement in 1992 as a partner of Ernst & Young. (k) Retired after a career in the health industry, a former Director of Nursing, Royal Alexandra Hospital for Children; Commissioner, Health Commission of New South Wales and director of Ambulance Education. She has participated in State Government enquiries into hospital and health services in New South Wales and South Australia and has served on numerous boards, councils and committees in both health and education. (l) The managing partner of the national office of KPMG chartered accountants and business advisers and a fellow of the Australian Institute of Company Directors. 148 The applicant put submissions on the authorities drawn significantly from the approach of Angel J and McGarvie J in Tangentyere Council Inc v The Commissioner of Taxes (NT) (1990) 99 FLR 363 and the Cairnmillar Institute case, supra, at first instance, respectively. In the light of the discussion of the appellate authorities which I have undertaken, it is unnecessary to discuss these two cases. Naturally, the applicant emphasises its public nature, even if there be government control and the relief which the applicant's activities indubitably bring to members of the public. There was no dispute that the applicant is an institution. 149 Thus, in one sense, the three words, severally, can be seen to be satisfied. That, of course, as was common ground, is not the proper approach. The applicant must answer the meaning or description of the phrase as a whole. 150 The respondent says that as a "purely governmental body" which carries out what are "government functions", the applicant is not a "public benevolent institution". The essence of the submission of the respondent was: That for a government body to be correctly characterised as a "public benevolent institution", the body must exist predominantly to promote the relief of poverty, sickness, destitution or helplessness, rather than to implement the policies, or to carry out the directions, of government, or to act as an arm of government for those purposes. 151 That the applicant is governmental in character cannot be denied. It represents the State. It is controlled by the Minister. However, for myself, I would hesitate to call it "purely" governmental. As part of the Health Commission from 1976 to 1990 it could legitimately be so described. It was virtually part of a Department of State. Indeed, during this period, it may well not have answered the description of an "institution": cf Maughan, supra at 398 ([34] above). It is no longer so organised. It is now a separate entity. Though directed and controlled, the Board is made up of members of the wider community, not public servants. 152 However, the fact that the ambulance service was run by a quasi-Department of State for fifteen years is important. It reflects a clear recognition in government that the provision of an ambulance service is a responsibility of government. I do not see the re-organisation under the 1990 Act as a reflection of any renunciation of that responsibility; rather, I see it as an attempt better to manage and deal with the responsibility. As Barwick CJ, Gibbs, Stephen, Mason and Wilson JJ said in Committee of Direction of Fruit Marketing, supra at 595: The range and scope of governmental purposes may vary from time to time and will be determined by the content of the public laws that are in force for the time being. 153 Thus viewed, the applicant is a representative of State which, overwhelmingly funded out of Consolidated Revenue, discharges functions seen in the statute and statutory history as, by the fourth quarter of the twentieth century, governmental in nature. 154 The development of the responsibility of government in this area and the interplay and interrelationship of government and community, as reflected in the changes under relevant statutes over the twentieth century, highlight the need to hold fast to the task of answering the question whether the body today answers the description of a "public benevolent institution" in ordinary English. The seminal cases discussed earlier were handed down before the post-War expansion of the welfare state. That is an expression which may or may not now be current, but it is adequate to reflect the expansion in at least some areas of perceived governmental responsibility as the twentieth century progressed. This can be seen in the changes over time to the relevant legislation in respect of this area of provision of health services. 155 The question whether or not some function is "purely" governmental may be seen as circular. If the government, as here, takes control of it and spends large sums on it, the service can be said to be governmental. However, I think it fair to say that the provision of properly staffed and functioning ambulance services is today seen by the community as something ultimately for which the government answers. Whilst the applicant's staffing is supplemented by volunteers, and whilst its activities in the community are supplemented, or perhaps, complemented, by organisations such as St John Ambulance, few people, understanding how the applicant was constituted, funded and run, would view it as anything other than the State of New South Wales providing ambulance services. This is not to lessen by one degree the high esteem the public no doubt have for the dutiful, caring and dedicated way the men and women who are ambulance officers carry out their tasks. Further, one cannot ignore that, however constituted, the applicant attracts not only donations, but also volunteers, to the discharge of its tasks. The volunteer honorary ambulance officers make up over 3% of the officer staff. The donations received comprise less than 1% of annual expenditure. Each figure enables a conclusion to be drawn that people in the community see the applicant as one worthy of their gratuity or their charity. 156 I have not found the resolution of the question at all easy. The applicant is plainly governmental. It carries out functions which in a modern, developed economy are expected, as a given, to be available. The government has undertaken responsibility, through an entity which is controlled by it and which represents it, to provide those services. The services involve the relief of distress and suffering and are carried out caringly and with duty and courage. Some members of the public express their gratitude, goodwill and interest by donating time and money. 157 However, in the light of the Fire Brigades case and the Mines Rescue case, the degree of governmental character that I have identified makes a conclusion that the applicant is a "public benevolent institution" difficult. The relief of suffering and distress is achieved by an entity carrying out government policy, controlled by and representing the State. A small proportion of its officers give (in one sense, charitably) to the discharge of these services as honorary officers. Though recognising the task is one of applying the ordinary English meaning of the phrase, I conclude, not without reluctance, in the light of these two cases, that the relief of distress and suffering which the applicant's activities bring about is not through benevolence, but through the successful discharge or execution of government policy and that, properly understood, by reference to its constitution, funding, control and activities, the applicant does not answer the description of a "public benevolent institution". Rather, it is the provider of services which the government, as a part of its responsibilities, has chosen, or recognised, to be a matter for it to fund, control and provide. 158 In the circumstances the application should be dismissed with costs. I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 16 August 2002 Counsel for the Applicant: J W Durack SC with D G Charles

Solicitor for the Applicant: K J Crawshaw of the New South Wales Department of Health

Counsel for the Respondent: S W Gibb SC with R M Henderson

Solicitor for the Respondent: Australian Government Solicitor