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

The historical evolution of the Ambulance Service and its constitution and activities 4 The historical account of the activities of the Ambulance Service undertaken by the primary judge reveals some similarities to that of other service institutions which are now the subject of government administration. The origins of the Ambulance Service may be traced to the establishment in 1881, by the then Board of Health in New South Wales, of a service to transport infectious disease cases from dwellings to isolation wards. That organisation featured local community control, with the assistance of equipment and vehicles provided by the colonial government. It continued until the establishment of the New South Wales Ambulance Transport Service Board as a body corporate constituted by the Ambulance Transport Service Act 1919 (NSW), which consisted of members elected by the Governor and four district ambulance brigades. 5 That statutory Board took control of the funding of ambulance services, which was sourced from contributions attributable both to the public and to consolidated revenue. The Public Service Act 1902 (NSW) did not apply to membership appointments, the members being nominated by ambulance bodies associated with district committees. The Board's activities extended beyond the Counties of Cumberland and Northumberland to area zones known as the Northern, Central and Southern Zones. 6 The 1919 Act was repealed and replaced by the Ambulance Services Act 1972 (NSW), which authorised the re‑organisation of ambulance services throughout New South Wales under the control of the New South Wales Ambulance Board. That Board consisted of 10 members appointed by the Governor on the nomination of the relevant Minister, being members not subject to the Public Services Act 1902 (NSW). The 1972 Act stipulated the powers, authorities, duties and functions of the newly constituted Board, and further that any contract entered into by the Board was to be 'for or on account of the Public Service of New South Wales'. The 1972 Act also provided for district committees to advise the Board, and to carry out functions as delegated by the Board, being district committees elected by contributors who were normally resident in a committee's district. A financial contribution scheme was established for the provision of ambulance benefits to contributors and their dependants, the Treasurer of New South Wales being authorised to make contributions as well. With certain well known exceptions, the operation of other ambulance services in this State was prohibited without the Board's consent, as was the raising of funds for other such ambulance services, with some exceptions, mainly by way of insurance schemes. 7 The 1972 Act was replaced by the Ambulance Services Act 1976 (NSW), which placed ambulance services under the aegis of the Health Commission of New South Wales.Provision was thereby made for the establishment and conduct of a contribution scheme for ambulance benefits in favour of contributors and their dependants.Subject to exceptions, the provision of other ambulance services was abolished, and the collection of funds for ambulance services, with certain exceptions, was prohibited.The Commission was a corporation established under the existing Health Commission Act 1972 (NSW), and was deemed to be a statutory body representing the Crown.It was subject to the control and direction of the Minister, except in relation to the contents of a recommendation or report made by it to the Minister.The members of the Commission to be appointed included the chairman and various commissioners having different responsibilities.The powers, authorities, duties and functions of the Commissioner '… reveal the broad governmental nature of it as the successor to the New South Wales Department of Health' (to cite the primary judge's description), which involved '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' (to cite the 1976 Act). 8 The foregoing account reflects in summary the primary judge's findings in relation to the legislative history in New South Wales of the provisions of ambulance services, prior to the present governing legislation, namely the Ambulance Services Act 1990 (NSW).That legislative history demonstrates the gradual evolution of public control and governance of ambulance services in New South Wales, the most significant change occurring in 1972.However in 1990, there occurred a degree of reversal of the nature of government dominance. 9 The 1990 Act, which remains in force to this day, established the Ambulance Service as a corporation representing the Crown.Its affairs are controlled by the Ambulance Service Board constituted by s 5 of the 1990 Act.Anything done in the name or on behalf of the Board, or with its authority, is taken to have been done by the Ambulance Service.The Board is subject to the control and direction of the Minister.All directors of the Board are appointed by the Minister, except for one director to be elected by the administrative staff, and except also for the Chief Executive Officer to be appointed by the Governor.That officer holds office subject to Part 2A of the Public Sector Management Act 1988 (NSW) relating to 'public sector executives', who may only be removed by the Governor. 10 The 1990 Act provides for the appointment and remuneration of directors, and for the procedures to be followed by the board of directors.The powers and functions of the Ambulance Service, set out in Part 4 of the 1990 Act, include the conduct, operation and maintenance of ambulance services, the protection of persons from injury or death, the efficient and economic operation and use of its resources for provision of ambulance services, consultation and co‑operation with individuals and organisations involved in the provision of ambulance services, the co‑ordination and planning of the future development of ambulance services, the setting of objectives and determination of priorities, and the achievement and maintenance of adequate standards of ambulance services.The Ambulance Service may appoint employees, and may second the service of any staff or facilities of a government department or a public or local authority.It may also appoint honorary ambulance officers, who are to be subject to its control and supervision.It is empowered to invest its funds, and dispose of its investments, subject to any trusts applicable thereto. 11 The activities of the Ambulance Service include rescue, administration of emergency medical attention, as well as transport to and from hospital.The Ambulance Service is represented on many community committees, especially in relation to areas relevant to the need for, and provision of, emergency medical services.The primary judge observed that the activities of the Ambulance Service often involve, for instance, the giving of relief to the distressed and the suffering, incidental to its usual services.His Honour further observed that ambulance officers are expected to adhere to the high ideals identified in a code of ethics, and may be called upon to deal with stressful and sometimes dangerous situations involving members of the public subjected to illness or injury, and to do so with skill, courage and compassion.The Ambulance Service also engages in educational activities which promote the knowledge of first aid.At the time of the hearing of the proceedings at first instance, there were 85 honorary officers, 2300 uniformed officers, and about 375 administrative and support staff engaged by the Ambulance Service. 12 The primary judge also detailed the various avenues of income derived by the Ambulance Service and found that not insignificant donations are made to it by members of the public.For the financial year ended 30 June 1997, its total expenses were $192,454,000 (including amortisation and depreciation), which were reimbursed by $51,438,000 in ambulance charges, $134,920,000 in government funds, $648,000 in donations, gifts and contributions, $272,000 from interest on investments and $2,061,000 in sundry revenue.It is the $648,000.00 in donations which is indirectly the focus of the proceedings.His Honour inferred that there existed a degree of perception in the community that the tasks undertaken by the Ambulance Service are deserving of voluntary and gratuitous support, and in particular financial support.I would add that although the relevant Minister appoints the directors, and whilst they are subject to the Minister's control and direction and may be dismissed by the Governor, they are in no sense employees or public servants.The directors are persons of notable fame and reputation, who are drawn from various segments of the community of the State of New South Wales.The Chief Executive Officer is a public servant.

The issues identified by the primary judge 13 Based on the authority of the Australian cases which the primary judge reviewed in depth, the primary judge said that he was bound to undertake an enquiry concerning the Ambulance Service by reference to the following issues: (i) whether it is a government body or a purely governmental body; (ii) whether it is an emanation of government; (iii) whether the functions which it performs are regarded as governmental responsibilities; and (iv) whether the functions it performs are functions undertaken on behalf of government. The enquiry was undertaken by his Honour by reference to the constitution, funding and control of the Ambulance Service, and a process of characterisation of the functions undertaken as being either governmental or not.I will later summarise the resolution of those issues by the primary judge.It is appropriate to summarise his Honour's review of the authorities in Australia, the application of which involved debate between the parties.

The primary judge's review of authorities 14 The primary judge commenced his review of the Australian authorities by reference to Chesterman v Federal Commissioner of Taxation (1923) 32 CLR 362.The High Court held by majority that the expression 'charitable purposes', which expression was to be found in an exemption for estate duty for gifts or bequests for 'religious, scientific, charitable or public education purposes', was not used in its technical legal sense, as understood by the law relating to charities, but in its popular sense or ordinary meaning.The Privy Council however took a different view (Federal Commissioner of Taxation v Chesterman (1925) 37 CLR 317), ruling that the expression 'charitable purposes' was to be understood in accordance with the categories identified by Lord Macnaghten in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531.As a consequence, the estate duty legislation was amended by substituting for 'charitable' the words 'public benevolent institution', being the expression the subject of the present litigation. 15 The Commonwealth estate duty provisions, as so altered, were thereafter considered by the High Court in Perpetual Trustee Company Limited v Federal Commissioner of Taxation (1931) 45 CLR 224. That case involved the bequest of a house property adjacent to Sydney Harbour for the establishment of dormitories, recreation facilities, and an auditorium for the use of men primarily serving in the Royal Navy and the Royal Australian Navy, though also for officers and seamen from warships of other nations.The majority finding of the High Court that the Naval House thereby established was not a public benevolent institution was not based on the absence of any public element. Two of the four members of the High Court, Starke J and Dixon J (as his Honour then was), described the statutory phrase 'public benevolent institution' as 'compound' or 'composite' in nature, and not possessing its general descriptive meaning.Otherwise, so Dixon J pointed out, its meaning would extend in some ways far beyond the legal meaning of the word 'charitable'.Starke J described the operation of the expression as 'an institution organized for the relief of poverty sickness, destitution or helplessness'.Their Honours were both of the view that the 'public element' was satisfied, but concluded that the 'benevolent' element was not satisfied.Dixon J concluded, as did Starke J implicitly, that the Naval House did not relieve poverty, distress, suffering or misfortune.Evatt J spoke of the statutory expression involving recipients of aid or comfort who comprise 'the poor, the sick, the aged and the young'. 16 The primary judge referred next to the decision of the High Court in The Public Trustee of New South Wales v Federal Commissioner of Taxation (1934) 51 CLR 75, which also arose in the context of the Commonwealth estate duty legislation.The bequest there principally involved was made in favour of four Church of England homes for the benefit of children, and 'other homes for children founded by the Church of England' having as their objects the care and control of children, as directed by the testator's widow during her lifetime, and after her death as directed by the trustees of his estate.The bequest was denied exemption from estate duty.The reason given by Starke J was principally because the bequest, albeit for the care, education and training of children, did not have as its paramount or chief purpose religious, scientific or public education purposes.Dixon J, with whom Rich J agreed, did not deny exemption from estate duty by reference to the absence of a public element, but by reason of the width of objects of the institutions or homes involved, which in his Honour's opinion extended beyond the scope of relief of distress and suffering.Both the Public Trustee decision, and the preceding Perpetual Trustee decision, were the subject of extensive submissions in the present Full Court appeal, particularly on the part of the Ambulance Service. 17 Some eight years later, the High Court decided in succession another two cases involving the statutory notions of 'public benevolent institution', to which decisions I will now turn.The first was Maughan v Federal Commissioner of Taxation (1942) 66 CLR 388, where it was held unanimously that an organisation called the Boys Brigade Inc, financed entirely by public donations, bequests and subscriptions, and which provided for underprivileged boys from the inner suburbs of Sydney what was described as a 'wholesome environment and intelligent occupation for their leisure hours', was a public benevolent institution within s 78(1)(a)(ii) of the ITA Act, which section allowed a deduction, inter alia, for gifts to public benevolent institutions in Australia.It was said that the ownership or control by government did not necessarily disqualify an institution as a public benevolent institution. In the circumstances there involved where there was provision of premises and facilities 'for an extensive class', and 'by reason of the measure of its public service and conditions under which it is given', the institution did qualify as a public benevolent institution. 18 The second case was Lemm & Ors v Federal Commissioner of Taxation (1942) 66 CLR 399, which was again an estate duty case.The testamentary devise of property there involved was made for the purpose of a home for aged women in straightened circumstances, who would be required to pay a basic weekly sum for the upkeep of the home.The High Court ruled unanimously that the bequest qualified as one made to a public benevolent institution, since the class involved was sufficiently wide, constituting as it did 'an appreciably needy class' in the community. 19 In the same year as Maughan and Lemm were decided, the High Court also decided two cases which considered the phrase 'public hospital', in the context of the National Security (War Damage to Property) Regulations concerning exemption from assessments for payment of contributions to the War Damage Fund in relation to fixed property or plant used primarily or principally as a public hospital or public benevolent institution.The first was The Little Company of Mary (SA) Incorporated v The Commonwealth, and the second The Memorial Hospital Incorporated v The Commonwealth & Anor. Both are reported at (1942) 66 CLR 368.The first case related to a hospital owned and conducted by a congregation of nursing sisters of the Roman Catholic Church, and the second to a hospital controlled by the Methodist Church.Each of the hospitals charged fees, and were open to the public, irrespective of the religious faith of patients, and neither was carried on for profit.The majority of the High Court was of the view that neither hospital was a 'public hospital', upon the basis that they were 'entirely church institutions', and as a question of fact and degree lacked the required element of public control or supervision.The minority decision of Rich J was founded on the view that the criteria as to the purposes served, rather than public control, were central to the question whether a hospital was a public hospital. 20 The primary judge next reviewed several State Supreme Court cases, before addressing two recent Full Federal Court decisions, both of which fell for his Honour's close consideration, and which I will later discuss in some detail.One of the Supreme Court cases, upon which the Ambulance Service placed a measure of reliance, was the decision of the New South Wales Court of Appeal in Australian Council of Social Service Inc & Anor ('ACOSS') v Commissioner for Pay‑Roll Tax (VIC) (1985) 1 NSWLR 567, which addressed the meaning of 'public benevolent institution' in the context of the Pay‑Roll Tax Act 1971 (Vic).Street CJ observed (at 568) that the phrase was 'not circumscribed by any statutory definition, nor was it a term of art'.His Honour continued as follows: 'Whilst its meaning is thus not absolutely incapable of extension or modification, the pursuit of certainty in the operation of statutes and dispositive instruments… is a powerful factor to be taken into account when it is sought… to widen the established scope of [public benevolent institution]. 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.' Priestley JA, with whom Mahoney JA agreed, said (at 575) that 'there might well be some force in [the] submission' that the High Court decision in Perpetual Trustee should not be 'mechanically' applied to exclude ACOSS from the exemption, and that ACOSS fell within the meaning of the phrase 'public benevolent institution' on present popular or ordinary notions of benevolence, and further that the content of the phrase had expanded since 1931 when Perpetual Trustee was decided. 21 The first of the two Full Federal Court decisions foreshadowed above was Metropolitan Fire Brigades Board v Commissioner of Taxation (1990) 27 FCR 279 (Wilcox, Spender and Pincus JJ), which decided that the Metropolitan Fire Brigades Boards constituted under the Fire Brigades Act 1964 (Qld) were not 'public benevolent institutions' within s 57(A)(1) of the FBT Act, and established merely as 'a government body' and 'an emanation of government'. 22 In that case the Full Court examined the relevant legislation, and in particular the provisions relating to the powers of the Minister to control the Boards and their budgets, to recommend dissolution of the Boards, and to make by‑laws and to impose penalties for breach thereof.The Full Court found that the funding of the Boards was undertaken substantially by the State Government out of its own funds, and from a trust fund established under the Fire Brigades Act to which property owners were compelled to contribute, and concluded that each Board was 'made a Government body', and was 'an emanation of Government'.The Full Court further found that notwithstanding the existence of volunteer fire brigades, the Boards' functions, for instance, of controlling and extinguishing fires, and of protecting life and property in the case of fire, had been for many years regarded as a responsibility of government.The Full Court said (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 ... the terms of the sub‑section are consistent with the view that government bodies are ordinarily not thought of as public benevolent institutions.' The conclusion of the Full Court was, (at 283): '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 suitable 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.' Whatever expansion of the phrase 'public benevolent institution' the Court of Appeal in ACOSS thought may have occurred since the pre‑Second World War decisions of the High Court, the Full Court in Fire Brigades was not prepared in principle to extend the statutory notion to what it described as 'a purely governmental body', irrespective of its functions. It is at this point of evolution of judicial authority that the Ambulance Service encountered its major obstacle at first instance. 23 The second of the recent Full Federal Court decisions was Mines Rescue Board (NSW) v Commissioner of Taxation (2000) 101 FCR 91 (R D Nicholson, Lehane and Goldberg JJ), which, like the present appeal, arose in the context of s 57(A)(1) of the FBT Act.The Mines Rescue Board was a corporation established under the Mines Rescue Act 1994 (NSW), which stipulated that the Board was a statutory body representing the Crown in right of the State of New South Wales.The control of the Board was placed in the hands of seven directors appointed by the Governor on the recommendation of the Minister, three of whom were to represent the interests of the mine owners and three of whom were to represent the interests of mine employees, leaving the remaining director to be nominated by the Minister.The chief executive officer was to be appointed by the Governor, who was empowered to remove him or her after consultation with the Board.The principal statutory functions of the Mines Rescue Board were stipulated to be first, the provision of rescue services for underground coal mines in New South Wales, and secondly the provision at its discretion of rescue services for other mines and non‑rescue services for mines and industry, both in New South Wales and elsewhere. Ministerial control was exercisable by written directions to the directors of the Board concerning the exercise of the Board's functions, with which the directors were bound to comply, subject to a review procedure.The Mines Rescue Board was also subjected by the governing legislation to an obligation to inform the Minister of its activities, and its conduct thereof.Other statutory obligations imposed on the Board included the preparation and delivery to the Minister of a draft corporate plan for the pending financial year, the giving of consideration to any Ministerial comments on the draft plan, and the delivery of the completed plan to the Minister before the beginning of each financial year.The Board was thereafter placed under a statutory obligation to exercise its functions in accordance with the plan. 24 The source of funding of the Mines Rescue Board was stipulated to be the Mines Rescue Fund established and governed by the Mines Rescue Act, and placed under the control and administration of the Mines Rescue Board, to which owners of coal mines were required to contribute, as prescribed by regulations.Moreover the Board was empowered to charge fees for exercising its discretionary functions.Also payable into that Fund were any moneys appropriated by Parliament for the purposes of the Board.There was additionally established by the legislation a Mines Rescue Brigade, comprising employees of the owners of underground coal mines in New South Wales.Whilst acting as members of the Brigade, those persons would be deemed to be employed by the Board.The function of the Brigade was to provide, under the control and direction of the Board, a mine rescue service, for which the Brigade's deemed employees would be paid fees and allowances.That service comprised the response to, and the dealing with, emergencies arising at underground coal mines, and also at other mines.The Minister was empowered to decide an appeal against a determination of the Board with respect to the number of employees of an owner required to be made available to serve as members of the Brigade, and as to the equipment and facilities to be made available by that owner for use by the Brigade. 25 At first instance (Mines Rescue Board of New South Wales v Federal Commissioner of Taxation (2000) 44 ATR 107), Hely J found in favour of the Commissioner.At [31]‑[32] of his Honour's reasons for judgment, the following appears: '[31] Given this context, the applicant is not, in my view, appropriately characterised as a public benevolent institution.There is no element of 'charity' to miners in the provision by a statutory body constituted for that purpose, of a rescue service capable of responding to emergencies in underground coal mines.Rather, the Mines Rescue Act 1994 (NSW) recognised that it is the responsibility of mine owners to provide the funds, personnel, and equipment to maintain the service, given the hazards inherent in the underground coal mining they undertake.This recognition of responsibility is emphasised by the passages of the Second Reading Speech set out at para 15 above.The fact is that the applicant's actions are predicated by statutory obligation; indeed, that the applicant is constituted in order to give effect to that responsibility, is fatal in this regard. [32] Finally, whilst there are obvious points of detail in which the present case is to be distinguished from that considered by the full court in Metropolitan Fire Brigades Board, there are obvious points of similarity between the 2 cases.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.' 26 The Full Court in the Mines Rescue case described the ratio of the Fire Brigades case to be that '… where a body was "purely a government body" so that it was exercising a function of government, it could not qualify as a "public benevolent institution"' (at 96).The Full Court emphasised that there had occurred in more recent times an increase in the privatisation of what had been for many reasons regarded as activities the responsibility of government, for instance hospitals and health services.In other words, the scope of objects for taxation relief was not necessarily diminishing by reason of the views being attributed by the courts to the meaning of this statutory expression. 27 The Full Court concluded that the Mines Rescue Board was not a public benevolent institution within the FBT Act, and thus upheld the decision of Hely J at first instance.The Full Court regarded as applicable to the circumstances there involved established principles of statutory interpretation to the effect that public benevolence imports the notion of benevolence and an element of charity, those notions involving the rendering of voluntary assistance to persons who, for one reason or another, are in need of help and cannot help themselves.The Mines Rescue Board was characterised by the Full Court as a government body under the control of the Minister, which had been brought into evidence to implement government policy in particular to the effect that owners of underground coal mines should fund, man and equip the provision of rescue services capable of dealing with emergencies in underground coal mines.

The conclusions of the primary judge 28 The primary judge concluded that the Ambulance Service was governmental in character, representing as it purported to do the State of New South Wales, and being controlled by a Minister of State.His Honour emphasised that from 1976 to 1990 (see [7] above), the Ambulance Service would have been correctly described as 'purely' governmental, being then 'virtually part of a Department of State', and may well then not have answered the description even of an 'institution'.His Honour characterised the Ambulance Service since that period of time as 'a separate entity', with a governing board made up of members of the wider community, and not of public servants.Nevertheless, the primary judge considered that the circumstance, that the Ambulance Service had been run by a 'quasi‑Department of State' for nearly 15 years from 1976 to 1990, reflected 'a clear recognition in government that the provision of an ambulance service was a responsibility of government'.His Honour attributed to the re‑organisation implemented under the 1990 Act 'an attempt better to manage and deal with the responsibility', and not 'any renunciation of that responsibility'.'Thus viewed', the primary judge concluded, 'the applicant is a representative of the 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'. 29 By way of expansion upon those conclusions, the primary judge said that if a government assumes the discharge of a government function, and spends large sums of money on that function, the service thereby provided can be said to be governmental in character.In assuming responsibility for that function, the provision by the State of adequately staffed and functioning ambulance services is regarded today by the community, his Honour further said, as something for which the government must answer.The primary judge emphasised that whilst the staffing of the Ambulance Service is supplemented by volunteers, and whilst its activities in the community are further supplemented, or perhaps complemented, by organisations such as St John Ambulance, 'few people understanding how [the Ambulance Service] was constituted, funded and run, would view it as anything other than the State of New South Wales providing ambulance services'.In making that observation, his Honour emphasised that he did not thereby intend to lessen 'by one degree' the high esteem the public doubtless holds for the dutiful, caring and dedicated way in which the men and women ambulance officers, carry out their tasks. 30 Moreover the primary judge did not overlook the circumstances that, however constituted, the Ambulance Service attracted not only donations, but also volunteers, for the discharge of its tasks.His Honour mentioned that volunteer honorary ambulance officers presently comprise over 3% of the officer staff, and donations equate 1% of annual expenditure or perhaps less, being statistics which nevertheless enabled a conclusion to be drawn by his Honour that people in the community view the Ambulance Service as one worthy of their gratuity or charity.As his Honour further found, the subject ambulance services involve the relief of distress and suffering, and are carried out caringly, with a sense of duty and with courage, and that some members of the public, implicitly for those reasons, express their gratitude, goodwill and interest by way of donating time and money. 31 Nevertheless the primary judge expressed the conclusion that in the light of the Fire Brigade and Mines Rescue decisions of Full Courts, the degree of government character or nature which he had identified rendered it difficult to conclude that the Ambulance Service was a public benevolent institution for the purposes of the FBT Act and the ITA Act.That was because the relief of suffering and distress was achieved in each case by an entity carrying out government policy, being an entity controlled by and representing the State.His Honour further found, 'not without reluctance', in the light of those two decisions of the Full Federal Court, '… that the relief of distress and suffering which the [Ambulance Service's] activities bring about is not through benevolence, but through the successful discharge or execution of government policy'. Properly understood, by reference to its constitution, funding, control and activities, the primary judge added, the [Ambulance Service] does not answer the description of a 'public benevolent institution', but '[r]ather, 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'.

The submissions of the Ambulance Service on appeal 32 The essence of the submissions of senior counsel for the Ambulance Service on this appeal was to the effect that, having found on the uncontested evidence that the Ambulance Service is a body whose activities involve the relief of suffering and distress and whose employees generally discharge their duties with care, kindness and compassion, and further that the Ambulance Service is for those reasons regarded by people in the community as a body worthy of their gratuity or charity, the primary judge erred in concluding that the governmental character or nature of the Ambulance Service was fatal to its characterisation as a public benevolent institution. Were it not for that finding, it was further submitted, the Ambulance Service would 'unquestionably' satisfy the tests for statutory classification as a public benevolent institution, being the tests formulated but not attained in earlier authorities such as Perpetual Trustee (the Naval House case summarised in [15] above) and Public Trustee (the Church of England homes for children case summarised in [16] above). 33 In support of its submissions, the issue arising on appeal therefore, so senior counsel for the Ambulance Service further submitted, was the correctness of the conclusion of the primary judge that the governmental nature of the Ambulance Service was fatal to its characterisation as a public benevolent institution, being a conclusion which his Honour said that he reached 'not without reluctance', following upon his resolution of a question which he did not find to be 'at all easy'. 34 The Ambulance Service cited the following passages, first from the Fire Brigades case (at 282), as follows: '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 government body is hardly ever likely to satisfy the tests which the authorities contain.' and secondly from the Mines Rescue case at [39] and [44], as follows: '39. It is important also to note that the Full Court (referring thereby to the Fire Brigades decision) 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. … 44. 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.' 35 These passages were said to be consistent with the following observations of Williams J in Maughan's case (at 397): '… 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 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 Hospital Act 1929‑1940 NSW).' The issue arising in Maughan's case was not however whether public control, in the form of a government body, could itself operate to prevent a body being characterised as a public benevolent institution. The critical issue here remains as to whether government control may be such as to disqualify the body for being so characterised. 36 It was next submitted on behalf of the Ambulance Service that fundamental to the outcome of the Fire Brigades and Mines Rescue cases was that the circumstances of their respective boards of directors were not consistent with the so‑called 'ordinary conception of benevolence', and that the governmental nature of the constituent bodies under scrutiny in those cases was not the cause of the failure of their respective Full Court appeals. That was because, so it was submitted, there was lacking in both instances 'the essential quality of benevolence or of an eleemosynary nature', since each Board served a statutory function or role in the commercial interest of private groups, property owners and mine owners, involving the discharge of obligations imposed on those sections of the community. The Macquarie Dictionary (Revised Third Edition) defines 'eleemosynary' inter alia as 'relating to alms, charity or charitable donations'. However it must be said that the purported contrast between interests that are public and interests which are eleemosynary is not a real one. There is in reality no such mutual exclusivity of interests. There is a public interest in relation to the potential loss of life and damage to property by fire and by mine disasters. 37 It was then submitted on behalf of the Ambulance Service that when the Full Court in Mines Rescue found that the characterisation of the Mines Rescue Board made by Hely J was open on the evidence (see [25] above), 'no principle of law emerges from the Full Court's decision that a governmental characterisation of a body is necessarily fatal to its status as a public benevolent institution', and the issue of characterisation remains to be resolved with regard to all of the circumstances of the particular case. So much may be readily accepted as a general proposition. 38 The correct approach to be taken, so the Ambulance Service thereafter contended was an approach said to be reflected in the reasoning in the Fire Brigades and Mines Rescue cases, namely that the primary judge in the present proceedings should have enquired whether the nature and purpose of the statutory function and responsibilities of the Ambulance Service were inconsistent with the characteristic of benevolence in the sense of charity, kindness and gratuity described in the earlier decided High Court cases of Perpetual Trustee and Public Trustee. However the earlier authorities did not need to consider the effect that governmental control had upon the resolution of the question. 39 The distinguishing feature of the Ambulance Service from the statutory boards involved in the Fire Brigade and Mines Rescue cases was submitted by the Ambulance Service to be the fact that the Ambulance Service was not funded, directly or indirectly, for the purpose of serving any commercial interests. The 'government nature' of the Ambulance Service was therefore submitted to be not inconsistent with its characterisation as 'benevolent'. However if the latter cases did involve what may be referred to as 'commercial interests', it does not follow that governmental control is irrelevant to the notion of a public benevolent institution. 40 The Court was next referred by the Ambulance Service to s 23 of the 1990 Act, subsections (1) and (3) whereof provide as follows: '(1) A person must not: (a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or (b) conduct for fee or reward any operations similar to the operations carried on by the Ambulance Service under this Act, without the consent of the Director-General and except in accordance with such conditions (if any) as the Director-General may from time to time impose. … (3) This section does not apply to: (a) the Ambulance Service, or (b) the St. John Ambulance Australia (NSW) in respect of operations similar to the operations lawfully carried on by that body immediately before the day on which this provision commences, or (c) the Royal Flying Doctor Service of Australia (NSW Section); or (d) the Mines Rescue Board, a member of the Board's staff (including the Board's chief executive) or a member of the New South Wales Mines Rescue Brigade established under the Mines Rescue Act 1994; or (e) any prescribed person or class of persons.' It was submitted that the legislation envisages that private organisations, such as St John Ambulance, could perform the same functions as the Ambulance Service, so that it should not be held that what the Ambulance Service really performed was exclusively a governmental function. Moreover in that context, the Ambulance Service cited the following passage from the judgment of the Full Court in Mines Rescue (at 97): 'The notion that certain activities are the responsibility of government is not one which could comfortably be made by a court today except in very limited circumstances.' The issue arising however from the Fire Brigades and Mines Rescue cases is not whether activities are the responsibility of government per se, but whether government has in fact assumed control or substantial control thereof. 41 The Ambulance Service further contended that the Service exhibited features which a 'purely government body such as Centrelink would not exhibit'. Emphasis was placed upon the educational and community activities of the Ambulance Service, which extend beyond the functions it was required by statute to perform, and which we have already summarised in [10] above. In his reasons for judgment, the primary judge clearly took this into account. His Honour said at [134] as follows: '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, influences the applicant.' 42 The fact that the Ambulance Service attracts donations not only in kind, such as equipment, but also in cash (see [12] above), and that s 18 of the Ambulance Service Act so envisages, was also relied upon by the appellant, as was the content of its Code of Ethics, the extent of honorary service ambulance officers, and also the fact that services are provided on the basis of immediate need, and in many instances, free of charge. All such matters were taken into account in the reasons of the primary judge, whether explicitly or implicitly. 43 The concluding thrust of the submissions of the Ambulance Service was that even if it may be regarded as a government administrative body, it nevertheless acts in a way which may properly be described as 'benevolent', and it otherwise exhibits all of the ordinary features of a public benevolent institution, that is, 'relieving suffering and distress, and in attracting the voluntary support of members of the community'. Moreover, so it was submitted, the Ambulance Service did not perform any statutory functions in the discharge of obligations imposed on sections of the community whose private commercial interests were involved, such as was true of the Fire Brigades and Mines Rescue organisations, whose functions were found of course to have been outside the ordinary concepts of benevolence.

The findings and conclusions 44 There is force in the submission of the Ambulance Service that were it not for the existence of the disqualifying factor referrable to its 'governmental character', the Ambulance Service would have been found by the primary judge to have qualified as a 'public benevolent institution' within the statutory contexts of the FBT and ITA Acts. As was observed in ACOSS by Priestley JA, with whom Mahoney JA agreed (at 575), the scope of application of that statutory expression has expanded since Perpetual Trustee was decided in 1931. Neither the case of Perpetual Trustee nor the case of Public Trustee,involved government institutions purportedly undertaking activities of benevolence. Moreover, as appears from the passages cited in [22] above from the Full Court's judgment in the Fire Brigades case, the connection of a body with government may, in some circumstances, assist towards a conclusion that it is a public benevolent institution. Moreover the word 'public', in the composite expression public benevolent institution refers not to public, in the sense of government in contrast to private but to the fact that the benevolence is directed to the public at large or a substantial sector of it. But no matter how much the meaning of public benevolent institution may have changed since the 1930's, an organisation which performs a governmental function is not properly to be characterised as a public benevolent institution, notwithstanding that its activities are benevolent. 45 Hence, as was subsequently stated by the Full Court in Mines Rescue, the ultimate issue which falls for resolution, in circumstances such as the present, is '… the degree to which the appellant is properly characterised as governmental'. If it is so characterised it does not fall within the meaning of the expression 'public benevolent institution'. That test is consistent with the approach taken by the earlier Full Court in Fire Brigades, as appears from the passages we have cited in [22] above, and was applied by the primary judge to the circumstances established by him in the present litigation. 46 The reasons for judgment in Mines Rescue provide illumination of the disqualifying degree inherent in any governmental characterisation of an operation or activity as that of a public benevolent institution. Any such characterisation is not to be foreclosed within traditional spheres of government responsibility. As we have already pointed out (see [40]), the Full Court said in Mines Rescue that '[t]he notion that certain activities are the responsibility of government is not one which could comfortably be made by a court today, except in very limited circumstances'. 47 The Ambulance Service has not submitted that Mines Rescue or Fire Brigades were wrongly decided.The issue in the present proceedings is the application or otherwise of what may be said to be obiter dicta in those authorities to the circumstances of the Ambulance Service.The difficulty of articulating any different principle as applicable to the circumstances of the Ambulance Service is, we think, too formidable.In our opinion, it has not been demonstrated that the primary judge wrongly applied any of the principles enunciated or confirmed in Fire Brigades and Mines Rescue to the circumstances of the Ambulance Service. 48 The constituent nature of the Ambulance Service, pursuant to the Ambulance Service Act 1990, is we think, fatal to any characterisation thereof as a public benevolent institution.That conclusion is consistent with the nature and extent of its operations and activities, as found by the primary judge.Contrary to the submissions of the Ambulance Service, we do not think that the nature and extent of those activities are sufficiently distinguishable from those undertaken by the government entities involved in Fire Brigades and Mines Rescue.Fire brigades, mine rescue teams and ambulance services each intervene to assist, and are trained to assist, in personal injury and life threatening circumstances, in relation to which there is significant public interest and concern.Moreover, ambulance services are not relevantly confined to activity involving non‑business operations and activities, any more than those provided by fire brigades, in that accidents and personal injury occur in business as well as non‑business environments (as the submissions of the Ambulance Service tend to overlook).It is in any event inappropriate to characterise activity organised or controlled by government, or predominantly by government, and thus activity effectively funded by taxpayers, as activity of a public benevolent institution according to its established meaning.The antecedents of that statutory notion cannot allow for room for what may be described as the 'quantum leap' from its juridical origins originating in 1931. 49 No error is therefore apparent in the findings and reasoning of the primary judge.The appeal should be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 1 August 2003 Counsel for the Appellant: J W Durack SC, D G Charles

Counsel for the Respondent: R F Edmonds SC, H R Sorensen

Solicitor for the Respondent: Australian Government Solicitor