NLC v Commissioner of Taxes [2002] NTCA 11

NLC v Commissioner of Taxes [2002] NTCA 11 - NTCA 2002 case summary — Zoe

[9]

the applicant [Northern Land Council] is not a charity within the popular meaning of that word and I have reached the conclusion that it is not a public benevolent institution. I am in broad agreement with the respondent's submissions above. The appellant Land Council's "predominant and characteristic purpose and activity is not to assist disadvantaged Aboriginal people, but as a statutory body to perform its functions under the relevant legislation. The fact that performance of these statutory functions assists disadvantaged Aboriginal people is a consequence rather than the object of the legislation. The fact is that the appellant Land Council was not formed to act charitably or benevolently in the eleemosynary sense. I agree that its discriminatory role in dealing with Aboriginal persons and the primacy accorded traditional owners is inconsistent with the dispensing of benefits according to need, what may be generally regarded as charity or benevolence. (sic).

The appellant is part of a statutory mechanism put in place to remedy past injustice. It has acquired a prominence and significance in representing Aboriginal interests in the north of the Northern Territory which is inconsistent with the notion that it voluntarily dispenses some form of welfare. Its formation and continuing activities are, I think removed from any "hand out" notion involved in the concept of charity or benevolence. Not all who benefit from the appellant's activities are objects of compassion or in states of distress.

Not all of the appellant's functions as prescribed by s 23 Land Rights Act are necessarily benevolent; that is, I do not construe each of its functions as necessarily benevolent in itself or ancillary or incidental to functions which themselves are benevolent ... It is well established that if each function of an institution is either benevolent in itself or necessarily incidental to other functions which themselves are benevolent, then the institution is a benevolent institution whereas if a function is non-benevolent and not merely incidental or ancillary to a main benevolent purpose or function the institution will not be benevolent.

[10]

[14]

The appellant challenges a number of these principal findings as either errors of law or fact, or both, although as I understand it, the appellant does not challenge the approach of the submission of the Commissioner that there are some factors relied upon by the learned trial judge which, whilst not conclusive, when taken as a whole might be indicative of a negative conclusion. However, what the appellant says is that the relevant factors, properly understood and taken as a whole, leads to an affirmative conclusion and that some of the factors referred to by the learned trial judge were either irrelevant or neutral in the circumstances of this case.

[15]

I agree with the opinion of the learned trial judge expressed in Tangentyere Council v Commissioner of Taxes [1990] NTSC 14; (1990) 99 FLR 363 at 364, that the term 'public benevolent institution' is not a term of art, but a compound expression which takes its meaning from ordinary English usage of the day. I would add to that, "and from the legislative context in which it finds itself if that context throws particular light on the intended meaning." In Perpetual Trustee Co v Federal Commissioner of Taxation (1931)

[1931] HCA 20; 45 CLR 224, both the context of the expression and the legislative history of the provisions of the Estate Duty Assessment Act 1914-1928 (Cth) were relied upon by Starke J (at 231-2) and by Dixon J (at 233) as showing that the meaning was narrower than 'charitable institution' in its technical legal sense. Therefore, a public benevolent institution (PBI) may be a charity in the legal sense, but not every such charity is a PBI. Whilst there is nothing in the history of the Pay-roll Tax Act 1978 (NT) which throws any light on the matter, the expression finds itself in the same company as religious institutions and public hospitals and there is no reason to depart from this view.

[16]

In the Perpetual Trustee Co case, supra, Starke J said at 232 that a PBI was in the context in which it was found and in ordinary English usage "an institution organised for the relief of poverty, sickness, destitution, or helplessness." Dixon J expressed the matter negatively, at 233-4, when he said that "I am unable to place upon the expression 'public benevolent institution' in the exemption a meaning wide enough to include institutions which do not promote the relief of poverty, suffering, distress or misfortune.

[16]

[19]

In Commissioner of Pay-roll Tax v Cairnmiller Institute [1992] VicRp 97; [1992] 2 VR 706 at 709, the Court of Appeal of Victoria held that the relief of poverty is not an essential prerequisite because the relief of suffering, distress or misfortune is also a characteristic of a benevolent institution. In order to qualify as a benevolent institution, it is not necessary to show that the services provided are only to those in financial need or without charge or for a small charge. At 712, the Court observed that it is no less benevolent to assist an AIDS sufferer because that person can afford to pay, for the issue is not the relief of poverty, but the relief of distress.

[20]

In The Royal Society for the Prevention of Cruelty to Animals, Queensland Inc., (1993) 1 Qld.R. 571, the Court of Appeal of Queensland held that the benevolence must be directed towards the public or a section of it, so that a body which provides those benefits to animals or otherwise indirectly for the benefit of mankind, is not within the meaning of the expression.

[21]

In a number of cases, individual judges have expressed differing views on whether or not the expression is similar to the present popular meaning of 'public charity': see The Royal Society for the Prevention of Cruelty to Animals, Queensland Inc., supra_,_ at 574 per Fitzgerald P and at 582 per Thomas J, where it was held that this was "not to the point"; c.f. Metropolitan Fire Brigades Board v Commissioner of Taxation, 27 FC R 279 at 283 where the Full Federal Court held, after referring to the speech of Lord Wilberforce in Ashfield Municipal Council v Joyce [1978] AC 122

at 137, that the notions, whilst not identical, were similar.

[22]

An institution may have independent or collateral objects and powers which enable its funds to be devoted to purposes which are not benevolent which can have the result of the institution losing the status it would otherwise possess as being a benevolent institution. The distinction to be drawn is between objects and powers which are independent and collateral, even if subsidiary, which have a disqualifying effect and those which are 'merely ancillary, incidental, dependent or concomitant' which do not: see

Maclean Shire Council v Nungera Co-operative Society Ltd (1995)

86 LGERA 430 at 432-3 (per Handley JA with whom Priestly and

Sheller JJA agreed.)

[23]

The learned trial judge placed emphasis on the need for the appellant to establish that it was formed to act charitably in the popular sense, or benevolently in the eleemosynary sense. I do not accept that, in order to succeed, it is necessary for the appellant to establish either of these propositions. In my view, whilst proof of those matters may well assist in reaching a conclusion favourable to the appellant, the absence of either or both of those factors is not determinative for the following reasons. As to the question of whether or not the appellant is a charity in the popular sense, I consider that consideration of this question diverts attention from the true question. In particular, I agree with Thomas J in The Royal Society for the Prevention of Cruelty to Animals, Queensland Inc, supra_,_ at 582 that this is "not to the point". As Lord MacNaughton said in The Commissioners for Special Purposes of the Income Tax v Pemsel [1891] UKHL 1; [1891] AC 531 at 583, "... no one as yet has succeeded in defining the popular meaning of the word 'charity'." The uncertainty of the term has often been remarked on: see Ashfield Municipal Council v Joyce, supra_,_ at 135 and the cases therein referred to. As to whether benevolence is limited to benevolence in the eleemosynary sense, which I take to mean "by the giving of welfare assistance", it is plain from a number of decisions that this is not essential if by welfare assistance one is speaking of the provision of money, housing, food, medicine, or other basic essentials. The provision of services to relieve distress may be sufficient for example, even if the services are not provided only to those in financial need or without charge or for a small charge: Commissioner of Pay-roll Tax v Cairnmiller Institute, supra_, Commissioner of Taxation v Launceston Legacy_ (1987) 15 FCR 527; Tangentyere Council Incorporated v Commissioner of Taxes [1990] NTSC 14; (1990) 99 FLR 363 at 372. The fact that not all those who are assisted are needy, or in states of distress, or objects of compassion, is also not necessarily conclusive, so long as the section of the public to whom assistance is directed may be so described as a class and so long as that class may be described as disadvantaged and appreciable: Lemm v Commissioner of Taxation, supra_,_ at 411 per Williams J (with whom Rich and McTiernan JJ agreed); supra_,_ at 366, 374; at 121; at 212.

[24]

The findings of the learned trial judge were that the appellant was subject only to limited and defined executive control by the Commonwealth government. There is no challenge to this finding. The Commissioner did not submit that the appellant was a part of government performing governmental functions: cf. Metropolitan Fire Brigades Board v Commissioner of Taxation (1990) 27 FCR 279; Mines Rescue Board v Commissioner of Taxation [2000] FCA 1162; (2000) 101 FCR 91. Such a contention could not be made in any event. It is clear from the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 that the Minister has no power to give directions to the appellant on the exercise of its functions and no power to interfere with the core revenue of the appellant. At best, in limited circumstances, the Minister may do that which a Land Council is empowered or required to do where the Land Council fails to act in certain circumstances (ss 12B(4); 12C; 19(9A); 19(9B) and 20(5)).

[25]

A factor pointed to by the respondent and apparently accepted by the learned trial judge as pointing to the conclusion that his Honour arrived at, is the suggestion that the appellant's services were not provided to traditional owners, or to other Aboriginal persons who benefit from them, voluntarily on the basis of assessed need, but on the basis of entitlement. In Noy & Ors v Tapgnuk & Ors and The Northern Land Council (1997) 6 NTLR

118 at 122-123, this Court held that s 23(1)(f) of the Aboriginal Land Rights (Northern Territory) Act which provides for a Land Council to provide legal aid in pursuing land claims, merely confers a discretionary power, not a right. It is difficult to see how, in the light of the reasoning in that case, any of the functions conferred on a Land Council by s 23 of the Act confer rights as opposed to powers. An exception to this is the obligation under ss 35(1), (2), (3), (4) or (6) of the Act to pay monies to the bodies to which, or persons to whom, the amounts are eventually to be paid and in this respect, ss 35(7), (8) and (9) make it clear that a Land Council holds these monies on trust for the ultimate recipients, but this role is in my opinion incidental or ancillary to the functions of Land Councils as expressed in s 23.

[26]

Certain facts were admitted by the respondent for the purposes of this case:

[21]

[27]

It was submitted by counsel for the appellant, Mr Basten QC, in the resolution of the ultimate question, the proper questions to be asked are, as set out by Campbell J in O'Farrell v Bathurst Municipal Council [1923]

40 WN (NSW) 78 at 80, viz: "What are the benefits which the institution dispenses, and to whom are the benefits extended..." Counsel for the respondent, Mr Durak SC, at first seemed to accept the correctness of this approach, but later he pointed out that O'Farrell's case dealt with the question of whether the institution was "public" rather than whether it was benevolent. Reference to the text in O'Farrell's case bears out Mr Durak's contention: see also the discussion by Angel J in Tangentyere Council Inc. v Commissioner of Taxes, supra_,_ at 365-6. In my opinion, the correct approach to the ultimate question of whether or not the appellant is a PBI is principally answered by reference to the terms of its "constituting documents", which in this case are the relevant provisions of the Aboriginal Land Rights (Northern Territory Act, 1976 and the relevant provisions of the Native Title Act 1993 (Cth); Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48; Gumbangerrii Aboriginal Corporation v Nambucca Council, supra.

[28]

An examination of the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976, shows that the core functions of Land Councils are concerned with providing legal aid to persons claiming to be traditional owners of land who wish to claim land under the Act (s 23(1)(f)), to protect the interests of traditional owners and other Aboriginals interested in Aboriginal Land in the area of the Land Council (s 23(1)(f)); to assist in the protection of sacred sites on land (whether or not Aboriginal land) in the area of the Land Council (s 23(1)(ba)); and to provide assistance of various kinds in relation to the management of Aboriginal land and to negotiate with others in respect thereof on behalf of the traditional owners and other Aboriginals interested in the land (see ss 23(1)(a); 23(1)(c); 23(1)(d); 23(1)(e), 23(1)(ea), 23(1)(fa) s 23(1)(h) and 23(3)). To a large extent, these latter functions can be seen as the provision of legal aid in negotiating legal outcomes on behalf of traditional owners and in the provision of advice and negotiating skills on behalf of traditional owners and other Aboriginals interested in the land or affected by a proposed use and as a protective shield against the cultural dominance of non-Aboriginal persons and bodies.

[29]

Similar core functions are to be found in the Native Title Act 1993: see

ss 203BB, 203BE, 203BF, 203BG and 203BH.

[30]

It was submitted that the purpose of these provisions and whether or not the core functions of Land Councils were beneficial in nature, could be discerned from an examination of the objects and purposes of the relevant legislation taken as a whole. We were referred to the second reading speech of the Minister (Hansard, House of Representatives, 4 June 1976, at

pps 3081 to 3084 (AB 968-71)). Some of the principal matters referred to by the Minister were:

[31]

[34]

A further matter urged upon us by the respondent was that the essential purpose of the appellant's functions, whilst of great benefit to the Aboriginal traditional owners and other Aboriginal was not designed to relieve poverty, sickness, destitution, helplessness or distress, or to provide relief designed to overcome or reduce disadvantage because the appellant's functions were to a large extent administrative in nature, in that the functions are performed as an integral part of and for the essential purpose of providing the special system of land tenure by which the wrongs of the past are remedied. I have already dealt with that contention to some extent in discussing the argument concerning traditional Aboriginal owners, but it is necessary to refer to some other matters. In some cases, the core functions of Land Councils may be seen and recognised as designed to relieve poverty: for example the provision of legal aid advice and assistance in making land claims, native title claims and in negotiating contracts, etc: see the oft cited observations of Nader J in Aboriginal Hostels Ltd v Darwin City Council (1985)

75 FLR 197 at 211; c.f. Legal Aid Commission of Victoria v Commissioner of Pay-roll Tax (1992) 92 ATC 2053. In other cases, the needs are more fundamental and lie in the preservation of Aboriginal spirituality, culture and tradition and protecting Aborigines from the cultural dominance of non-Aboriginal society. This cultural dominance is well known and has been recognised by the Courts, particularly in relation to authority figures (see for example R v Anunga (1976) 11 ALR 412), but there is also a well recognised need to ensure that advantage is not taken and misunderstanding is avoided by others not familiar with Aboriginal culture of common cultural traits such as gratuitous concurrence (see Dumoo v Garner (1997)

[1998] NTSC 8; 7 NTLR 129 at 142). Many traditional Aborigines do not speak English well and have had little formal education. Most non-Aborigines have little understanding of what is and what is not offensive to many Aboriginal people. It is for these reasons that the Act envisaged that a Land Council was necessary to provide the support and assistance traditional Aboriginal owners and other Aboriginal persons living on Aboriginal land in accordance with s 71 of the Act clearly needed if their culture, spirituality, traditions and freedom of choice were to be respected and protected. Those needs are recognisably beneficial in relieving distress and helplessness and in my opinion, that is the essential nature to which the core functions of the appellant are directed.

[35]

One of the reasons given by the learned trial judge for his conclusion that the appellant is not a PBI was that the appellant's predominant purpose and characteristic was not to assist disadvantaged Aboriginal people, but as a statutory body to perform its functions under legislation and the fact that the performance of these functions assists disadvantaged Aboriginal people is a consequence rather than the object of the legislation. I have already expressed in detail why I do not accept this view, but there are some further matters on this topic, which were raised in argument by counsel for the respondent, which still need to be addressed. One matter urged upon us was that Land Councils perform a range of essentially administrative functions with respect to Aboriginal land and the primary purpose of such Councils is to provide a convenient administrative structure for traditional owners to acquire and hold Aboriginal land and for others to negotiate to retain or acquire interests (including mining interests) in such land, for the management of Aboriginal land and for the distribution of revenues from Aboriginal land. Land Councils do not make land claims; they assist traditional owners to make land claims by providing assistance, including arranging legal assistance (s 23(1)(f). Land Councils do not hold Aboriginal land which is required to be held by Land Trusts, although they do supervise and provide administrative and other assistance for Land Trusts (s 23(1)(h)). Land Councils are not there to enable others to retain or acquire interests in Aboriginal land, but they do negotiate on behalf of traditional Aboriginal owners and other Aboriginals interested where there are others wanting to acquire or retain such interests. This is not an administrative function. It is the case that Land Councils receive and distribute payments due to Aboriginal traditional owners, whether under mining royalty agreements or other kinds of agreements relating to the use of Aboriginal land, but that is a form of direct assistance to the traditional Aboriginal owners who are, for obvious reasons, unable to do this for themselves and to ensure, no doubt, that contracts are not made directly with traditional Aboriginal owners contrary to s 48J of the Act and that contracts made with traditional Aboriginal owners are observed and performed by third parties in accordance with their terms. I am unable to see why these functions are not beneficial in the relevant sense, given the circumstance that Aboriginals and traditional Aboriginal owners do not otherwise have the means to do this for themselves.

[36]

A submission was made on behalf of the respondent that the representative nature of Land Councils, whose members are chosen pursuant to s 29 of the Act by the Aboriginals living in the area of the Land Council, is indicative that Land Councils are not PBIs. In my opinion, the fact that a Land Council's members are chosen by the persons whose interests the Land Council is meant to serve merely reinforces the fact that the appellant is a "public" body; it does not detract from the status of the appellant as a PBI; c.f. Maughton v Federal Commission of Taxation, supra_,_ at 397; Lemm v Commissioner of Taxation, supra_,_ at 410-411. I do not see how this is otherwise relevant to the question.

[37]

Another matter relied upon was the method of funding of the appellant which, it was submitted, was "effectively funded by the very people it is intended to benefit". I am unable to accept this contention. The appellant's source of funding is from the Consolidated Revenue Fund. It may be that the ultimate source of this revenue is from mining royalties, but if that be so, the relevant royalties are those received or receivable by the Commonwealth or the Northern Territory in respect of a mining interest on Aboriginal Land: see ss 63(2) and (4), and ss 64(1), (2), (3) and (7). There is nothing in the Act which vests the ownership of minerals in the Aboriginal land in a Land Trust; indeed the contrary is the case: see s 12(2). This contention is plainly wrong.

[38]

A matter referred to by the learned trial judge as being a function which was not benevolent in itself or ancillary or incidental to functions which themselves are benevolent is the function conferred by s 23(1)(ea) to:

[34]

[39]

Finally, there is one matter which was not argued before us which I wish to mention and that is this. Section 9(a) of the Pay-roll Tax Act exempts from pay-roll tax wages paid or payable by a public benevolent institution to a person during a period in respect of which the institution satisfies the Commissioner that the person is exclusively engaged in work of a public benevolent nature. As previously observed, this is a two-fold test. The Estate Duty Assessment Act 1941-1928 (Cth) upon which the decisions of the High Court were concerned did not contain a two-fold test in order to obtain the exemption. All of the leading cases (except one) which have dealt with the distinction to be drawn between ancillary powers which do not affect the status of a PBI and independent and collateral objects which do not affect such status, were cases which did not require proof of a two-fold test. In Royal Australian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34; (1943) 68 CLR 436, s 23(e) of the Income Tax Assessment Act exempted the income of a "religious, scientific, charitable or public educational institution" from income tax. Congregational Women of

New South Wales v Thistlethwayte & Others [1952] HCA 48; (1952-53) 87 CLR 375 at 442-4 concerned whether a gift by will was to a charity and therefore not invalid, as was Stratten v Simpson [1970] HCA 45; (1970) 125 CLR 138 at 159-60; Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (1990) 23 FCR 82 dealt with an exemption under s 23(g)(iii) of the Income Tax Assessment Act which required proof that the club was "established for the encouragement or promotion of an athletic game or sport". Maclean Shire Council v Nangera Co-operative Society Ltd, supra, which applied and followed these authorities, dealt with a rating exemption in respect of "land which belongs to any public benevolent institution ... and is used or occupied by the institution ... for the purposes thereof", is admittedly a two-fold test, but of a wholly different character from s 9(a) of the Pay-roll Tax Act. It is at least open to argument that all of these authorities are distinguishable and that the requirement for the tax-payer to satisfy the Commissioner that the wages of a person exclusively engaged in work of a public benevolent nature implies that, in order to be a PBI, the activities of the PBI need not be exclusively beneficial, as otherwise the second limb of the test in s 9(a) would have no work to do. However, I do not rely on this in reaching my conclusion as the matter was not argued.

[40]

In my opinion, the appeal should be allowed.

[35]

[41]

The question now is what orders should be made? Counsel for the appellant submitted draft minutes of order which I have considered. The appellant seeks, inter alia, an order setting aside the assessment and remitting to the respondent the assessment of pay-roll tax, if any, payable by the appellant for further consideration according to law. Counsel for the respondent,

Mr Durak SC, opposed the first of these orders because he was unable to find "a clear basis in the pay-roll tax legislation for an amended assessment". Further discussion between the Court and counsel left it unclear what the respondent's position was with respect to the question of remission and, in particular, whether the proceedings should be remitted either to Angel J, or to some other Judge of the Court, or to the Commissioner.

[42]

The Taxation (Administration) Act has a provision (s 97) enabling the Commissioner to amend an assessment. However, that Act does not generally apply to the Pay-roll Tax Act (see the definition of "this Act" in

s 4(1) of the Taxation Administration) Act.) Also, for reasons which are not clear, s 4 of the Pay-roll Tax Act, which provided that the Commissioner of Taxes appointed pursuant to the Taxation (Administration) Act has the general administration of the Pay-roll Tax Act, was repealed by

s 29 of Act No. 37 of 1980. Nevertheless, the Commissioner of Taxes exercises certain powers and functions under the Pay-roll Tax Act: see, for example, ss 12 and 13 of the Act, and s 3(1) which defines "the Commissioner". Although the Commissioner has power under s 19(1) to assess the amount of wages paid or payable and to calculate the tax payable thereon, and to issue default assessments under ss 19(2) and 19 (2B) of the Pay-roll Tax Act, I am unable to find any provision similar to s 97 of the Taxation (Administration) Act which would enable the Commissioner to issue an amended assessment. The Commissioner has power to allow an objection under s 34, but once the objection is disallowed, it would appear that he has no power to reduce the assessment to nil if he subsequently changes his mind.

[43]

As already noted previously, the Commissioner disallowed the objection to the assessment relying on both limbs of s 9(a), and the appeal relates to both limbs. Only one of those limbs was considered by Angel J.

[44]

In the circumstances, I consider that the proper course is not to set aside the assessment at this stage. I understand that the reason for the Commissioner's disallowance of the objection was based on the same grounds in relation to both limbs of s 9(a) and it is now desired that the Commissioner reconsider the second limb of s 9(a) on the basis of further facts not previously considered, which the commissioner contends can be relied upon on the further hearing of the appeal: see Federal Commisioner of Taxation v Wade [1951] HCA 66; (1951) 84 CLR 105. If the Commissioner and the appellant can reach agreement, it may be that the appeal to the Supreme Court can be disposed of by consent orders. If no agreement can be reached, the Court can still dispose of the remaining ground, and I agree with the Chief Justice that it is up to the parties to arrange for that aspect of the appeal to the Supreme Court to be brought on for hearing.

[45]

I would therefore propose the following orders:

[62]

... The Bill gives effect to that policy and, further, will provide Aborigines in the Northern Territory with the opportunity to claim and receive title to traditional Aboriginal land outside reserves. The Government believes that this Bill will allow and encourage Aborigines in the Northern Territory to give full expression to the affinity with land that characterised their traditional society and gave a unique quality to their life.

Most of us now appreciate more sensitively than in the past that traditional Aborigines think, feel and act about land according to a plan of life a world apart from ours. Traditional Aborigines associate identifiable groups of people with particular 'countries' or tracts of territory in such a way that the link was publicly reputed to express both spiritual and physical communication between living people and their 'dream time' ancestors and between the 'country' as it now is and the 'ancestral' country which had been given its names, its physical features, its founding stocks of food and water, and its owners and possessors by the ancestors themselves. It is believed that ancestors left in each 'country ' certain vital powers that, used properly by the right people, make that 'country' fruitful and ensure a good life for people forever. Everywhere there was a plan of life - a good and satisfying life - based on an identifiable and unmistakable group of people forming a descent group or 'clan', living with relation to an identifiable territory publicly recognised as the 'country' of the group because of the actions of ancestors who had left in each 'country' sacred memorials - the totems and totemic sites of which we hear so much - as proof of entitlement for, and to guide and discipline, their descendants. The depth of appeal that an Aboriginal's 'country' has for him can be gauged by the pictures he may paint, the songs he may sing, the stories he may tell and the dances he may perform. His 'country' - no matter how stricken a wilderness it may seem to others - is to him a Canaan, from which his spirit came and where he wants his bones to rest. In the Northern Territory Aboriginal communities still wanting to maintain and live by their culture and social forms involving land in the sense I have described will be enabled by this Bill to do so.

[95]

[77]

There is no authority to the effect that a body that performs statutory functions, independent of government is not a public benevolent institution. The question that is determinative of it being a public benevolent institution is whether the Northern Land Council performs functions designed to provide relief to a disadvantaged and appreciable section of the community.

[78]

The primary Judge found that the functions of the Northern Land Council benefited Aboriginal people generally in the area for which the Land Council is responsible and that Aboriginal people as a whole were in a disadvantaged position. This finding combined with the fact that traditional Aboriginal owners are a disadvantaged and appreciable section of the community is sufficient to find that the Northern Land Council is a public benevolent institution.

[79]

The respondent submits that the appellant has stated the issue too narrowly. On the respondent's submission the issue is whether the appellant is a public benevolent institution in the light of a range of matters which include but are not limited to its functions and activities. The respondent maintains this requires a holistic approach in which consideration must be given not only to what the organisation does but also to such matters as its designation as a Land Council its intended role as part of the machinery for correcting past injustices and conferring land rights on Aboriginal people, the manner in which its officers are appointed and the means by which it is funded.

[80]

The respondent accepts that traditional Aboriginal owners were shown on the evidence before the trial Judge to be disadvantaged. However, the respondent argues that this is not the point. On the respondent's case the point is that the primacy accorded to traditional owners is inconsistent with the dispensing of benefits "according to need" which is an essential element necessary for the characterisation of a body as a public benevolent institution.

[81]

The respondent recognises that Aboriginal people in this community are members of a class who, generally speaking, suffer from significant disadvantages and are in need of assistance. It also recognises that the functions and activities of the appellant are beneficial to Aboriginal people. However, the respondent maintains this does not automatically mean the appellant is a public benevolent institution, it is necessary to look at its "predominant and characteristic purpose and activity" (Royal Australian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34; (1943) 68 CLR 436, Rich J at 447:

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