Lloyd v Commissioner of Taxation

By his last will Edward Norman Belcher of Geelong, who died on 31st January 1947, made a disposition for which exemption from estate duty is claimed as one for public educational purposes. The subject of the disposition is the deceased's one-fourth interest, valued at £24,355, in a piece of land called Belcher's Corner. The terms of the disposition are as follows: - "Regarding my quarter share in Belcher's Corner I direct my trustees to hold in trust the income therefrom for the Navy League Sea Cadets Geelong Branch or any other youth welfare organization male or female as in their wisdom they deem fit." This is followed by a direction not to sell the interest unless under compulsion and then to invest the proceeds for such organizations as those before mentioned in the clause. With the help of s. 131 of the Property Law Act 1928 Vict. the validity of this disposition was upheld as a charitable gift so far as it concerns the Navy League Sea Cadets, Geelong Branch, and, because the other purposes mentioned in the clause went beyond what is charitable, the application of the entire interest of the deceased in Belcher's Corner was confined to that corps or body: In re Belcher dec'd. [3] .

The question for our decision is whether it forms a devise or bequest for public educational purposes so as to be excluded from estate duty.

The Geelong branch forms part of the Navy League Sea Cadet Corps, Victoria. The Navy League, Victorian Branch, is a voluntary association the objects of which are directed to the maintenance of British naval strength and kindred policies. Among the purposes enumerated in the constitution of the Victorian branch of the league are the teaching of the history, spirit and traditions of the sea services in all schools and elsewhere by such means as may be deemed most expedient and the maintenance and developing of the Sea Cadet Corps in Victoria. Pursuant to this last object the league established the body called the Navy League Sea Cadet Corps, Victoria, with a branch organization at Geelong. The league entrusts the general direction of its own policy and administration to an executive committee which it elects annually. The Navy League Sea Cadet Corps of Victoria is governed by a constitution which may be amended by the Navy League Executive Committee and doubtless owes its origin to that body. The control of the corps is placed in the executive committee of the league, and it appoints the more senior officers. There is a State Commandant or Captain, a State Commander and an Assistant State Commander and district lieutenant commanders so appointed and these form a senior officers committee, with which the State Captain consults. Company officers, who rank as "Lieutenants Navy League", are responsible for the training and discipline of the cadets of the company as well as the care of the depot, equipment, boats and the like. A company is or may be part of a branch organization, as it is in Geelong. The Executive Committee of the Navy League may convene a public meeting where a company is to be formed and invite persons interested to become associate members of the Sea Cadet Corps branch in that place. The associate members may then elect a local committee. The company officer must be one of its members. The work of a local committee includes the raising of funds for the Sea Cadet Company, the assisting of the officers in carrying out their duties "in order to ensure the spirit of comradeship and complete co-ordination of effort essential to the well being of the sub-branch and company and the corps as a whole" and the endeavouring "to secure progressive and harmonious working with religious civic and educational authorities parent and citizens' associations and all recognized organizations devoted to the welfare of boy life".

Boys are enlisted in the Sea Cadet Corps when they are between the ages of ten and seventeen years. There is a prescribed uniform which petty officers and cadets must wear when required by the officer in charge. Colour patches distinguish the companies. The effective strength of a company must not be less than twenty or more than seventy-five petty officers and cadets. Camps may be held, both general and company camps. The constitution of the Navy League Sea Cadet Corps, Victoria, states the aims of the Sea Cadet Movement to be "to keep alive the sea spirit of our race, also to assist cadets to become good citizens of Australia and the Empire by voluntarily accepting discipline and by doing their duty in the spirit of the motto, For God, Queen, the Empire and Australia". The same document gives a catalogue of the training in twelve brief descriptions, viz. (1) character building; (2) swimming, life saving (first aid); (3) squad drill, marching; (4) mariners' compass construction and uses; (5) helm construction and uses; (6) anchors, construction and uses; (7) boat management, oars and sail; (8) knots, bends, hitches and splices; (9) rule of the road; (10) lead line and markings; (11) semaphore signalling; (12) healthy recreation. The forming of classes is left to the company officer, with the direction that he is to form one as circumstances and the exigency of the occasion demand and that variety is necessary to hold the interest of the boys.

The Geelong branch holds midweek evening parades and Saturday afternoon parades in uniform. The cadets are inspected. Some time is given to lectures and instruction. There are sports and indoor games and sailing and rowing. The lectures and instruction cover hygiene, conduct, citizenship, something under the head "subject of general education", knots, splices, bends and hitches, navigation lights and rule of the road and hearing and visual signalling. Instruction has also been given, it is stated, in sea history, general seamanship, compass and steering, rigging, squad drill, service and leadership, first aid and life saving and physical and recreational training. There are regular sporting competitions.

The question we have to decide does not concern the value or merit of the organization, the importance of its contribution to youth welfare, sea training and loyal citizenship, or the advantage to the community of its work. It is concerned only with the claim to apply to the Sea Cadet Corps the description "public educational purposes" as that expression is used in s. 8 (5) and (8) of the Estate Duty Assessment Act. For myself I find it too difficult to give the expression a sufficiently wide meaning to comprehend the objects and operations of the Navy League Sea Cadets Corps, Victoria. It is a compound phrase and like most compound phrases its application cannot safely be ascertained by taking each separate word of which it is composed and then exploring the uses of which by itself the word is capable. No doubt the word "educational" may be used with reference to any process of instruction direction or control to which the young are submitted, however intermittently, if it has a purpose or tendency, or supposed tendency, of developing some of the faculties or of forming character. Again the word "public" is not incapable of a use which implies nothing more than that the thing to which it refers must not be "private" either in the sense of being conducted for private profit or of being established for the private advantage of a class of individuals and not for the benefit of the public at large or a section of the public. It seems to me that only by first attaching large constructions like these to the respective terms and then combining them is it possible to fit the Navy League Sea Cadet Corps, Victoria, within their meaning. But the application to the corps of the expression "public educational purposes" as a compound expression strikes one as most unnatural. The central or basal characteristics to which the exemption is directed may be seen in the schools, colleges, universities, technical schools and schools of art which are so familiar to us. It may be conceded that the application of the exemption is not restricted to such institutions. Instruction and training of the young may take many different forms and no doubt the expression "public educational purposes" will find applications to systematic methods or procedures for the inculcation of knowledge, whether scholastic or vocational, for the cultivation of the mental and physical powers and for the development of character although they may vary widely from those practised or illustrated in the examples of formal education that are more familiar to the community. But even so the Sea Cadet Corps seems remote indeed in objects organization and procedure from anything which may be supposed to fall within the denotation of the expression. Its organization and discipline are reflected from the Navy. The cadets assemble for comparatively brief periods twice a week. There is no organized course of study, no systematic preparation for a defined end. What is done is for the promotion of the welfare of youth by providing associations, interests and discipline arising from the sea and the naval and maritime services. Highly as this may be commended, it does not seem to me to be what the legislature meant by "public educational purposes".

My answer to the question in the case stated is therefore in the negative.

The objects of the Navy League Sea Cadet Corps are essentially patriotic but are fit to be attained by educational means. The claim that the purposes of the Geelong branch of this organization are "public educational purposes" rests upon the instruction and training which it provides for the youths who join it. The rules of the central organization contain a curriculum of subjects and activities which is carried out by the branch. The constituents of this curriculum are set out in the case stated. The principal, if not the only, activity provided in the rules for attaining the aims of the organization is the carrying out of this curriculum. The methods mentioned are classes and camps conducted by officers of the corps for the benefit of the cadets. The Geelong branch follows the curriculum and these methods. The particulars of the educational activities which it carries out are contained in the case stated. It does not appear that it has any other activities. Looking at the particulars of the curriculum prescribed by the corps for the training of its cadets and at the particulars of the instruction and knowledge imparted by the branch's instructors and officers to the cadets I think that it is right to describe it as a body whose principal purposes are educational. If the subjects of the programme of instruction are taken individually it may be said with force that instruction in a number of them would not ordinarily be regarded as education. I think that the proper method is to consider the subjects as a combination designed as a preparation for the calling of a sailor and a way of teaching youths its traditions and ideals of service. Viewing the work of the corps in that way I think it is correct to say that its purposes are educational.

The next question is concerned with the meaning of "public". A guide is to be found in s. 8 (8) of the Act. I think that it can be inferred from this provision that the scope of the term "public educational purposes" in s. 8 (5) is not limited to education provided or recognized by the State, as the respondent contended. It is clear from s. 8 (8) that an admissible test under the former provision is whether the purposes are to the benefit of the public or a section of the public. I think that the Navy Cadet Corps and its Geelong Branch satisfy that test. Their objects are entirely public. Neither of them is carried on purely for private gain. Upon the facts stated in the case I think that the educational activities in which the central body of the organization and this branch engage are conducted for the public benefit and especially for the section of the public consisting of the youth who are training as cadets.

I think the question in the case should be answered "Yes".

Case stated by Dixon C.J. pursuant to s. 28 of the Estate Duty Assessment Act 1914-1947. The late Edward Norman Belcher by his will directed, inter alia: - "Regarding my quarter share in Belcher's corner I direct my trustee to hold in trust the income therefrom for the Navy League Sea Cadets Geelong Branch ".

The question for determination is whether this provision was for "public educational purposes in Australia" within the meaning of s. 8 (5) of the Estate Duty Assessment Act. By s. 8 (8) "public educational purposes" includes the endowment of "an educational institution for the benefit of the public or a section of the public".

It is necessary to set out at some length the origin and activities of the Navy League Sea Cadets, Geelong Branch. It is a branch of the Navy League Sea Cadets Corps, Victoria, and was formed at a public meeting at Geelong convened under the official patronage of the Executive Committee of the Navy League, Victoria Branch. The affairs and activities of the Geelong Branch are controlled by a committee elected annually at a general meeting of those entitled to vote, being any persons who have become members of the branch by signing a declaration that they recognize the authority of the Navy League Executive Committee and who pay an annual subscription of one shilling.

Since its formation the Geelong Branch has been engaged continuously in carrying out the aims and training set forth in a document entitled "Organization and Regulations of the Navy League Victorian Branch governing the Navy League Sea Cadets of Victoria". The activities of the branch include the formation of a company of cadets somewhat along the lines of naval cadets. The age of entry is between ten and seventeen years. Parades in uniform take place twice weekly and there are lectures to cadets on hygiene, conduct, citizenship and subjects of general education, instruction in knots and splices, bends and hitches, rule of the road as applying to navigation, navigation lights and signalling. There is also some study of British naval traditions. Sailing, rowing, games and sports are also part of the curriculum. Instruction has been given in sea history, general seamanship, compass and steering, squad drill, rigging, service and leadership, first aid and life saving, physical and recreational training. The money required for conducting the branch has been obtained mainly from donations and subscriptions from the public, the proceeds of functions and street appeals. The Navy League Sea Cadet Corps of Victoria is an unincorporated body established and conducted under the auspices of another unincorporated organization known as "The Navy League Victoria Branch". The latter body is associated with an organization known as "The Navy League" which has its head office in London, England. As to the constitution and activities of the English body we have no particulars. However, the aims and organization of "The Navy League Sea Cadets Corps Victoria" are set forth in the above document, which, in addition to the matters already mentioned, refers to the Navy League Sea Cadets Corps Victoria as a "Movement" and states that the aims of the movement are "to keep alive the sea spirit of our race, also to assist cadets to become good citizens of Australia and the Empire by voluntarily accepting discipline and by doing their duty in the spirit of the motto "For God, the Queen, the Empire, and Australia" ". It provides for training under the following headings: - (1) character building, (2) swimming, life saving (first aid), (3) squad drill, marching, (4) marine compass construction and uses, (5) helm construction and uses, (6) anchor, construction and uses, (7) boat management, oars and drill, (8) knots, bends, hitches and splices, (9) rule of the road, (10) lead line and marking, (11) semaphore signalling, and (12) healthy recreation.

It also provides that the "Navy League Executive Committee" shall control the "Movement" and that their decision shall be binding on all officers and ratings. I take this to mean the Navy League Victoria Branch Executive Committee. It further provides that if a donor expresses a wish that his gift shall be used for a specific purpose that wish shall be respected.

The constitution of "The Navy League Victoria Branch" states that the objects and purposes of the league are: (1) to secure as the primary object of national policy the complete naval protection of British subjects and British commerce all the world over; (2) to urge this policy on all citizens of the British Empire and upon the government of the day; (3) to spread information showing the vital importance to the British Empire of maintaining such naval strength as will ensure the permanent safety of our trade and Empire, and our food supply, and secure British prestige on every sea and in every part of the world; (4) to teach the history, spirit and traditions of the sea services in all schools and elsewhere by such means as may be deemed most expedient; (5) to maintain and develop the Sea Cadet Corps of Victoria; (6) to collect, receive and hold funds and property by voluntary collection, subscription, gifts and legacies for the objectives of the league or such of them as the donors may direct. All Australian citizens signifying their approval of the objects of the league shall be eligible to become members. Members' subscriptions range from one shilling to one guinea.

The general direction of the policy and administration of the league is vested in the executive committee which, among other things, may refuse to accept any person as a member without giving a reason.

I think the constitution and activities of the Geelong branch as revealed by the case and its annexures sufficiently show that it is established for "public educational purposes", as it is "an educational institution for the benefit of the public or of a section of the public" and is confined to such purposes by appropriate documents: Royal Choral Society v. Commissioners of Inland Revenue [1] , per Lord Greene M.R. [2] . A liberal construction should be given to words of exception from tax: Armytage v. Wilkinson [3] ; Burt v. Commissioner of Taxation [4] , per Higgins J. [5] . Now from the documents referred to I conclude that it is an institution: see Minister of National Revenue v. Trusts & Guarantee Co. [6] ; Royal Choral Society's Case [1] . It is also, I think, an educational institution in as much as its main purpose is systematically to impart useful knowledge of a technical nature to youths with a view to such knowledge being employed eventually to the public advantage as well as their own. It is not necessary that the instruction imparted should be of a general educational nature: Royal Choral Society's Case [1] . The recreation provided for is merely incidental to the main purpose. Lastly it is clearly for the benefit of a section of the public. However, but for the extension of the definition of "public educational purposes in Australia" by s. 8 (8) of the Act, I would have had some difficulty in holding that the Geelong branch is constituted or conducted for such purposes. No doubt there is public control of the branch, of the "Movement" and of the parent body that brought it into existence in the sense that public control was exercised in Maughan v. Federal Commissioner of Taxation [7] ; that is to say because their constitutions provide for those members of the public who are sufficiently interested in the work of these associations or societies to subscribe to their funds and thereby become annual members and as such eligible to vote at the elections of the controlling bodies. But the compound expression "public educational purposes in Australia", according to the common understanding of that expression as revealed more particularly in the public statutes, seems to me to imply some State control, exercised either directly or indirectly, and there is no such control of the Geelong branch, or of the "Movement" or of the parent body through which it came into existence, or of their activities.

1. (1943) 2 All E.R. 101. 2. (1943) 2 All E.R. 101, at p. 105. 3. (1878) 3 App. Cas. 355. 4. (1912) 15 C.L.R. 469. 5. (1912) 15 C.L.R., at p. 487. 6. (1940) A.C. 138, at pp. 149, 150. 7. (1943) 2 All E.R. 101. 8. (1943) 2 All E.R. 101. 9. (1942) 66 C.L.R. 388.

Edward Norman Belcher died on 21st January 1947. Clause 25 of his will, referring to a valuable property in the city of Geelong, read: - "Regarding my quarter share in Belcher's Corner, I direct my trustees to hold in trust the income therefrom for the Navy League Sea Cadets Geelong Branch or any other youth welfare organization male or female as in their wisdom they deem fit". The question for decision is whether this disposition falls within s. 8 (5) of the Estate Duty Assessment Act 1914-1947, which exempts from estate duty "so much of the estate as is devised or bequeathed for religious scientific or public educational purposes in Australia". The contention of the executors is that the gift is a gift for "public educational purposes". Section 8 (8) provides that "public educational purposes" includes "the establishment or endowment of an educational institution for the benefit of the public or a section of the public". The constitution and the objects and activities of the Navy League Sea Cadets are expounded fully in the judgment of the Chief Justice and need not be repeated.

I had to consider the validity and effect of the gift in question in In re Belcher dec'd. [1] in which I held that a gift to the Navy League Sea Cadets was a gift for charitable purposes, but that a gift to "other youth welfare organizations" was a gift for purposes which included non-charitable purposes. I then had to consider the effect on the actual gift made by the will of s. 131 of the Property Law Act 1928 Vict.. I concluded that the gift took effect as a gift of the income of the whole of the testator's interest in Belcher's Corner to the Navy League Sea Cadets.

The correctness of this decision on the effect of the statute was, of course, in no way in question on this appeal. I think I should mention, however, that my attention was not called either to an article by Mr. E. H. Coghill Mixed Charitable and Non-Charitable Gifts [2] , or to the decision of Nicholas C.J. in Eq. in Union Trustee Co. of Australia Ltd. v. Church of England Property Trust, Diocese of Sydney [3] . I have not considered whether, if I had had these before me, I should have taken a different view, but I have thought that I ought to mention them, and to mention also two later articles by Mr. Coghill [4] , in the latter of which he cites the recent case in New Zealand of In re Ashton (dec'd.); Siddall v. Gordon [5] .

1. (1940) 14 A.L.J. 58. 2. (1946) 46 S.R. (N.S.W.) 298; 63 W.N. 153. 3. (1950) 24 A.L.J. 239; (1955) 29 A.L.J. 62. 4. (1955) N.Z.L.R. 192.

In considering in In re Belcher dec'd. [1] the question whether the trust for the Navy League Sea Cadets was a charitable trust I do not think that I was greatly concerned to determine whether that trust would be more correctly placed in the second or in the fourth of the "categories" in Commissioners for Special Purposes of Income Tax v. Pemsel [1] , or partly in the one and partly in the other. It seemed to me clear enough that it was a charitable trust. But the second category has always been regarded as casting a very wide net, and I thought that the purposes of the Navy League Sea Cadets were educational in the relevant sense. I have not seen any reason to doubt the correctness of this view, nor did I understand it to be in any way challenged. It does not, however, follow from this view that the purposes of the Navy League Sea Cadets are "public educational purposes" within the meaning of s. 8 (5) of the Estate Duty Assessment Act. In considering whether the trust is charitable, we are concerned with the meaning of the word "education" as used in a judgment, and as intended merely to describe in a very broad and general way one particular kind of purpose which should be held to be within the "spirit and intendment" of the statute of Elizabeth I. In considering whether the subject matter of the trust is dutiable, we are concerned with a compound expression - "public educational purposes" - used in a statute, and intended to define the nature of certain gifts which are to be exempt from duty. The elements which make up that compound expression cannot be separated and considered in isolation from one another. There is one single question, and that question is whether the trust for the Navy League Sea Cadets, Geelong Branch is a trust for "public educational purposes". That question is not answered by saying that there is an educational element in the trust, or that the work which the trust is designed to forward has a high educational value - as indeed I think it has.

1. (1950) V.L.R. 11. 2. (1891) A.C. 531, at p. 583.

I am quite unable to agree with one view suggested by Mr. Menzies. The exemption given by the words in question is not, in my opinion, confined to educational institutions or activities which are conducted or controlled by the State. I would think it clear that the word "public" had reference primarily not to the instruments by which education is to be imparted, but to the persons to whom education is to be imparted. The primary intention is to exclude private trusts such as a trust for the education of AB or of the children of AB. The benefit of the trust must be open to "the public" or a section of "the public".

I have, however, come to the conclusion that we have not here a trust for public educational purposes within the meaning of s. 8 (5). The question, as so often happens, is very largely a matter of one's conception of the natural meaning of a word or phrase. Here the words of the statute convey immediately to my mind a definite impression of something more formal, more continuous, and more systematic, than what is provided by the Navy League Sea Cadets. Then, pursuing the matter a little further, one reflects that purposes which would certainly come primarily within those words are the purposes of a university, or an ordinary school or college for girls or boys. Such institutions are, I think, characterized by the fact that they exist for the purpose of imparting knowledge as such, whether the ultimate aim of the pupil be vocational or generally cultural or what you will. I am not able to regard the Navy League Sea Cadets as another species of the same genus. The activities of that body have an educational aspect and an educational value, and this aspect and this value are more than mere accidentals. But the imparting of knowledge as such is not its raison d'être. A soldier has to be taught many things in the Army, but no one would say that the Army was a public educational institution in any relevant sense. A "nautical school" (of the kind familiar in England) for the training of officers for the Navy or the Merchant Navy would probably be a public educational institution, but I cannot think of the Navy League Sea Cadets as a nautical school, and the reason is, I think, that the one does, and the other does not, exist for the essential purpose of the communication of knowledge by teachers to pupils.

The question in the case stated should, in my opinion, be answered: - No.

Edward Norman Belcher died possessed of a one-quarter share in certain real estate known as Belcher's Corner. He left a will, by cl. 25 of which he directed his trustees to hold the income from his share in Belcher's Corner in trust for "the Navy League Sea Cadets Geelong Branch or other youth welfare organization male or female as in their wisdom they deem fit". On an originating summons it was held in the Supreme Court of Victoria that the gift so made was not void for uncertainty or for any other reason; that so far as it related to the Navy League Sea Cadets, Geelong Branch, but not otherwise, it was a valid charitable bequest; that there was no intestacy as to the testator's share in Belcher's Corner; and that the trustees should apply the whole of it for the benefit of the Navy League Sea Cadets Geelong Branch: In re Belcher dec'd. [1] .

An appeal against the assessment of estate duty in respect of the testator's estate was brought to this Court, and in the course of it the question arose whether the gift contained in cl. 25 of the will was a devise or bequest for public educational purposes in Australia, within the meaning of s. 8 (5) of the Estate Duty Assessment Act 1914-1947. If it was, estate duty is not assessable or payable upon the property to which given, for s. 8 (5) provides that "Estate duty shall not be assessed or payable upon so much of the estate as is devised or bequeathed for religious, scientific, or public educational purposes in Australia ". The question now comes before the Full Court by way of case stated under s. 28 of the Act.

In construing the crucial words of s. 8 (5) no assistance is afforded by any other provision of the Act, except s. 8 (8) which provides that "In this Act, "public educational purposes" includes the establishment or endowment of an educational institution for the benefit of the public or a section of the public". It is clear from this provision that where a devise or bequest is made to an educational institution it is not necessary to find that the institution is subject to some form of public control in order to conclude that its purposes satisfy the description "public educational purposes". Reasoning such as that which led the majority of the Court to hold, in The Little Company of Mary (S.A.) Incorporated v. The Commonwealth [1] , that the institution there being considered was not a "public hospital" within the meaning of a National Security Regulation has no place under s. 8 (8). The test which the Act makes sufficient is that which Jordan C.J. stated in O'Connell v. Newcastle Municipal Council [2] : "it is the purposes to which the (institution) is directed, not the manner in which it is controlled, which determines whether it should be regarded as a public (institution)" [3] . This was re-stated by Williams J. when he said with the concurrence of Rich J. in Maughan v. Federal Commissioner of Taxation [4] : "an institution which aims at benefiting an appreciable section of the community is a public institution" [5] : see also Lemm v. Federal Commissioner of Taxation [6] .

1. (1942) 66 C.L.R. 368. 2. (1941) 41 S.R. (N.S.W.) 190; 58 W.N. 166. 3. (1941) 41 S.R. (N.S.W.) 190, at p. 193; 58 W.N. 166, at p. 168. 4. (1942) 66 C.L.R. 388. 5. (1942) 66 C.L.R., at p. 398. 6. (1942) 66 C.L.R. 399.

Such being the situation which the Act specifically creates with respect to educational institutions, the conclusion almost necessarily follows that the "public" element in the conception "public educational purposes" is present, even in the case of a devise or bequest which is not for the establishment or endowment of an institution, whenever the educational purposes aimed at are for the benefit of the public or a section of the public. The submission was made on behalf of the commissioner that the meaning of the compound expression "public educational purposes" is not to be found by asking first whether the purposes in view are educational and secondly whether they are public. It is true that the expression is a compound one, the words "public educational" going together as the adjectival form of public education; but "public education" is not an expression which in common understanding in Australia has any special signification different from the aggregate of the meanings of its components. Moreover, it is not unambiguous. In some contexts, no doubt, it may refer to education of the kind usually offered by schools, colleges and universities when provided, controlled, supervised, approved or recognized in some manner or degree by a department of State or a body exercising governmental or statutory authority. But to give the expression any such shade of meaning in the context of s. 8 (5) in so far as it applies to a devise or bequest which is not to an institution, and yet to give full effect to s. 8 (8) where the gift is to an institution, would be to treat the one exemption provision as intended to effectuate two divergent policies according as the educational purposes of a devise or bequest are or are not to be served through the medium of an institution. Whatever view might have been taken if s. 8 (8) were not in the Act, that sub-section really necessitates separate consideration of the public element and the educational element in a purpose for which the exemption is claimed. The conclusion would seem to be that educational purposes for the benefit of the public or a section of the public are public educational purposes in the intended sense, and that the office of s. 8 (8) is to make it clear that where the devise or bequest is to an institution it is not necessary to find a public element in the control of the institution itself, so long as the institution is characterized by educational purposes which are for the benefit of the public or a section of the public. The words "public" and "benefit" point to two essentials: first, that the education must be provided for persons selected as members of the public or a section of the public and not selected for reasons of private concern or as members of some private class; and, secondly, that the provision of the education must not be a means of obtaining private profit for those who provide it. To use the language of the Privy Council in Dilworth v. Commissioner of Stamps [1] the devise or bequest must be such that "the beneficial interest in it is not vested in any private person, but belongs inalienably to the public" [2] . Those who receive education provided under such a gift cannot "with propriety be described as the recipients of private education" [1] : and the effect of s. 8 (8) seems to be that they may with propriety be described as the recipients of public education, in the sense which is relevant under s. 8 (5).

1. (1899) A.C. 99. 2. (1899) A.C., at p. 109. 3. (1899) A.C., at p. 109.

On this construction of the legislation it is neither here nor there whether a body to which a devise or bequest is made is an "institution". Section 8 (8) does not make the exemption in s. 8 (5) more extensive where the gift is to an institution than where it is not; it only ensures that the exemption is equally extensive in the one case as in the other by making irrelevant the question of public or private control. Whether the application of the property to the purposes of the gift is entrusted to an individual, a group of individuals otherwise unassociated, an association of persons, or a corporation, it seems to me that the one question determines the right to the exemption: are the purposes for which the devise or bequest is made educational purposes for the benefit of the public or a section of the public? In the case of a gift to an individual or individuals it is necessary to find that by the terms of the gift he or they are effectually restricted in the application of the property given so that the gift satisfies the description in s. 8 (5). In the case of gift to a body, incorporated or unincorporated, it is necessary to find that the constitution of the body prescribes a similarly restricted scope of application. In neither case is the restriction as precise as it would be if the word "exclusively" or "only" were found in s. 8 (5) after "public educational purposes", for then no gift could attract the exemption if any part of the corpus or income of the property given could be applied, consistently with the gift, for any purpose, however minor in importance, which was collateral or independent as distinguished from being a purpose of or incidental to public education: cf. Inland Revenue Commissioners v. City of Glasgow Police Athletic Association [2] ; Metropolitan Borough of Battersea v. British Iron & Steel Research Association [3] . But even without any such word having been "anxiously introduced" [4] , the exemption extends only to cases in which purposes of public education characterize the gift; and that cannot be the case unless the gift so deals with the property that it is devoted to such purposes, if not exclusively, at least chiefly: Commissioners of Inland Revenue v. Forrest [5] ; Public Trustee (N.S.W.) v. Federal Commissioner of Taxation [6] ; Royal Australasian College of Surgeons v. Federal Commissioner of Taxation [7] ; Salvation Army (Victoria) Property Trust v. Fern Tree Gully Corporation [1] ; Royal College of Surgeons of England v. National Provincial Bank Ltd. [2] ; Minahan v. Commissioner of Stamp Duties [3] .

1. (1953) A.C. 380. 2. (1949) 1 K.B. 434. 3. (1890) 15 App. Cas. 334, at p. 352. 4. (1890) 15 App. Cas. 334. 5. (1934) 51 C.L.R. 75, at p. 100. 6. (1943) 68 C.L.R. 436. 7. (1952) 85 C.L.R. 159, at p. 172. 8. (1952) A.C. 631, at pp. 655-659, 661. 9. (1926) 26 S.R. (N.S.W.) 480; 43 W.N. 157.

With these considerations in mind, I turn to the gift made by cl. 25 of the will. There is an unincorporated body known as "The Navy League Sea Cadet Corps, Victoria", and it has a Geelong branch which is conceded to be the body referred to. The Navy League Sea Cadet Corps, Victoria, was established and is conducted under the auspices of another unincorporated organization, known as "The Navy League Victorian Branch". The latter is in turn associated with a wider organization, known as "The Navy League" which has its head office in London. We have no information concerning the Navy League, but the constitution of the Navy League Victorian Branch is before us. The objects and purposes of that body (which may be referred to as the league) include maintaining and developing the Sea Cadet Corps in Victoria. The league is declared by its constitution to be free from party politics and unconnected with any political organization. The general direction of its policy and administration are vested in an executive committee, which is given power to make such by-laws and regulations as it thinks fit for carrying out the league's objects.

In some manner which does not appear, but possibly by an exercise of the powers of this executive committee, a constitution has been provided for the Navy League Sea Cadet Corps, Victoria, which will be referred to as the corps. This document is entitled "Organization and Regulations of the Navy League Victorian Branch Concerning the Navy League Sea Cadet Corps of Victoria". It commences by naming the corps and providing that it shall be strictly non-political and non-sectarian and that all positions shall be honorary. The aims of the corps are stated to be "To keep alive the sea spirit of our race, also to assist cadets to become good citizens of Australia and the Empire by voluntarily accepting discipline and by doing their duty in the spirit of the motto," "For God, Queen, The Empire and Australia". This general statement is followed immediately by a list headed "Training". The list is: 1. character building; 2. swimming, life saving (first aid); 3. squad drill, marching; 4. mariners' compass construction and uses; 5. helm, construction and uses; 6. anchors, construction and uses; 7. boat management, oars and sail; 8. knots, bends, hitches and splices; 9. rule of the road; 10. lead line and markings; 11. semaphore signalling; 12. healthy recreation. An executive organization is provided for, consisting of a State Commandant, a State Commander and Assistant State Commandant, a District Officer and company officers. All appointments to these ranks are to be made by the executive committee of the league. That committee is to control the corps and its decisions are binding on all officers and ratings. Branch organization is to consist of an executive committee, a welfare executive committee, a welfare committee and associates, but any of these may be omitted, and all or any of them which are in existence may be terminated, at the discretion of the executive committee of the league. The members of the corps are organized in ranks which are given naval titles. It is inferred rather than provided that the unit of local organization is a branch, having attached to it a company under the command of a company officer. The effective strength of a company is not less than twenty or more than seventy-five petty officers and cadets, though double companies may be formed which are to be separate for internal organization and drill but under the supreme command of a senior company officer. It is declared to be desirable that company officers, who are not to be less than twenty-one years of age unless holding acting appointments, shall have had some service at sea, and if possible with the naval forces. A company officer is responsible for the training of cadets, the cleanliness of the depot, the safe custody of all equipment and the housing and mooring of boats used by his company. He is to cause a roll to be kept, showing the strength of the company, and in respect of each boy his age, his date of enlistment and date of departure. In addition to other duties, he is to endeavour to secure the interest of religious, civic and educational bodies, and of parents' and citizens' associations and other recognized bodies interested in the welfare of the boys, and is to "encourage the boys under his charge to acquire a wider understanding of the value of the British Empire and of right citizenship, i.e. that discipline, courtesy and service to one's fellows produce the most worthy citizens". Boys are to be enlisted between the ages of ten and seventeen. The wearing of uniforms is provided for. Cadets are to learn to swim as soon as practicable. There are regulations concerning the holding of company camps. It is provided that classes shall be formed by the company officer or his deputy as circumstances and the exigencies of the occasion demand, variety, it is stated, being necessary to hold the interest of the boys. The company officer is responsible for the training of cadets and for the discipline of all those placed under him, and he and all his senior officers are to hold a meeting at least six times a year for the purpose of discussing matters affecting training and the welfare of cadets and of the corps generally.

The constitution prescribes, as the method of forming a company, that a public meeting shall be convened under the official patronage of the executive committee of the league, at which all interested shall be asked to join as associate members of the branch, sign a declaration recognizing the authority of the executive committee of the league in all matters pertaining to the corps, and pay an annual subscription of one shilling. The associate members have the right to vote for the election of officers for a local committee, which has the duties of creating an atmosphere favourable to the establishment and growth of the corps, assisting the appointed officers of the corps to carry out their duties, and using its best endeavour to secure progressive and harmonious working with religious, civic and educational authorities, parents' and citizens' associations and all recognized organizations devoted to the welfare of boy life.

As required by this constitution, the Geelong branch of the corps was formed at a public meeting convened under the official patronage of the executive committee of the corps. It was formed in April 1932, and a local committee which was then elected met in the following month. In each subsequent year a general meeting of the associate members has been held and has elected a committee. The number of boys who have been sea cadets belonging to the branch, and the number of instructors attached to it, have varied from time to time. In 1940 there were fifty cadets and four instructors; in 1941, eighty-one cadets and four instructors; in 1946, fifty-two cadets and five instructors; in 1951, thirty-four cadets and four instructors; and in 1954, ninety cadets and seven instructors. There is a waiting list for cadets.

Ever since its formation, the branch has been engaged continuously in carrying out the aims and training described in the constitution of the corps. Its activities include mid-week evening parades and Saturday afternoon parades, at which there are lectures on hygiene, conduct, citizenship and subjects of general education and instruction is given in knots and splices, bends and hitches, the rule of the road as applying to navigation, and the following specific subjects: sea history, general seamanship, compass and steering, squad drill, rigging, service and leadership, first aid, life saving and physical and recreational training. In addition there is some study of British naval traditions, recreation by indoor games and sports, sailing and rowing.

An organization such as this is plainly charitable in the legal sense of the term, as the Supreme Court of Victoria has held, and property given to it is therefore held upon trust for charitable purposes and cannot lawfully be diverted therefrom: In re Manchester Royal Infirmary; Manchester Royal Infirmary v. Attorney-General [1] . The gift made by cl. 25 of the testator's will is accordingly a gift for those purposes. Are those purposes wholly or predominantly purposes of public education in the sense which has already been discussed? They undoubtedly are purposes for the benefit of a section of the public, for they have to do with the development, along the lines which the constitution of the corps describes, of boys drawn from the public generally and not selected by reference to any restrictive qualification. No element of private profit-making is involved, for every position in the organization is honorary and none of the money or other property of the corps could legitimately be appropriated to the private use of any individual. As to whether the purposes are educational in character, it is in point to recall that in the Supreme Court of Victoria Fullagar J. said of the trust created by cl. 25 that it is "primarily and essentially" a trust for the advancement of education [2] . It seems to me to be aptly so described. The account which has been given of the subjects in which training is contemplated by the constitution of the corps, and of the activities in which the cadets engage, is sufficient to show that instruction in certain practical and theoretical subjects and the development of the mind in particular directions are the pre-occupation and chief concern of the corps in general and of the Geelong branch in particular. In Chesterman v. Federal Commissioner of Taxation [3] , Isaacs J. spoke of the general understanding of the words "public education" in the context of s. 8 (5) as having the sense of "imparting knowledge or assisting and guiding the development of body or mind" [4] ; and Starke J. said that "the essential idea of education is training or teaching" [5] . The conception is unquestionably much wider than mere book-learning, and wider than any category of subjects which might be thought to comprise general education as distinguished from education in specialized subjects concerned primarily with particular occupations. The case of In re Corbyn; Midland Bank Executor & Trustee Co. v. Attorney-General [6] to which Fullagar J. referred in his judgment, contains an expression of Morton J.'s inclination to consider that a gift to enable boys from a training ship to be trained elsewhere with a view to their taking commissions in the Royal Navy or becoming officers in the mercantile marine is in the nature of a gift "for education in a particular branch of study" and for that reason charitable. So, too, tuition for a commercial career has been recognized as educational in the charity sense of the word: In re Koettgen's Will Trusts [1] . The training which is the raison d'être of the corps is such as would teach a lad whose ambitions lie towards a sea-going career some of the rudiments of his intended craft and afford him some intellectual equipment and some stimulus towards further preparation. It is evident, of course, that the majority of cadets will not be of this kind and will join and continue in the corps for the sake of the interest, and the fun, which they get out of its activities. That fact, however, seems to me to be irrelevant, for it cannot affect the true characterization of the purposes to which property is devoted when given to a branch of the corps. Those purposes, seriously pursued as they are by a responsible body acting in an organized and disciplined manner, appear to me to be essentially and predominantly educational. I have not forgotten that the constitution, almost at the outset, describes as an aim of the Sea Cadet Movement the objective of keeping alive the sea spirit of the race; but I should agree with Fullagar J. that this is "rather a justification put forward for the educational aims and objects of the Sea Cadets than a statement of aims and objects as such" [2] . And the statement of the additional objective to assist cadets to become good citizens by voluntarily accepting discipline and by doing their duty in the spirit of the motto which is quoted, is of the same kind. Coupled with the injunction to company officers to encourage a wider understanding of the value of the British Empire and of right citizenship, it simply sets ideals before those who take part in the training and instruction which form the immediate purposes of the corps.

1. (1889) 43 Ch. D. 420, at p. 428. 2. (1950) V.L.R. 11, at p. 13. 3. (1923) 32 C.L.R. 362. 4. (1923) 32 C.L.R. 362, at p. 386. 5. (1923) 32 C.L.R., at p. 400. 6. (1941) Ch. 400. 7. (1954) 1 Ch. 252. 8. (1950) V.L.R., at p. 14.

In my opinion the question in the case stated should be answered, Yes.