Philippsohn v Attorney General for New South Wales

Texts Cited: G E Dal Pont, Law of Charity (3rd ed, 2021, LexisNexis)

Category: Principal judgment

Parties: Peter Philippsohn (First Plaintiff)
Steven Gross (Second Plaintiff)
Attorney General for New South Wales (Defendant)

Representation: Counsel:
R Lancaster SC/A Butt (Plaintiffs)
A M Hochroth (Defendant)
Solicitors:
Arnold Bloch Leibler (Plaintiffs)
Crown Solicitor’s Office (Defendant)

File Number(s): 2024/361664

Publication restriction: Nil

JUDGMENT

1. The plaintiffs are the executors of the estate of the late Millie Phillips, who died in 2021. Since suffering a stroke in 2018, Mrs Phillips had lacked testamentary capacity. However, by orders made pursuant to s 18 of the Succession Act 2006 (NSW) on 25 September 2019, the Court of Appeal authorised the making of a will for Mrs Phillips as set out in Annexure A to those orders (the Will): Small v Phillips (No 2) [2019] NSWCA 268; (2019) 18 ASTLR 608.

2. After providing for various legacies and bequests, the Will contains the following direction to the executors:

“I direct my executors, at such time or times as they consider appropriate, to transfer my residuary estate after payment of my estate debts to a trustee or trustees selected by them to be held upon trust for the following objects.”

3. The Will then sets out a number of objects which, taken as a whole, appear unquestionably charitable. I will refer to them in detail below. The Court of Appeal said of the evidence as to this aspect of the matter (at [22] of Small v Phillips [2019] NSWCA 222; [190] of Small v Phillips (No 2)):

“…The evidence indicates a clear charitable purpose on the part of Mrs Phillips to benefit the objects set out in the draft Will. It would be appropriate for a statutory will to provide for the residuary estate to be held upon trust for the charitable objects named in the schedule to the Draft Will. It would be a matter for the legal personal representatives to establish a trust by way of a cy-près scheme or other application under the Charitable Trusts Act 1993 (NSW).”

4. By summons filed on 30 September 2024, the plaintiffs now make the application foreshadowed in their Honours’ reasons. The relief claimed is as follows:

“1. An order pursuant to sections 6(1)(b) and 6(2A) of the Charitable Trusts Act 1993 (NSW) that the plaintiffs be granted leave to bring these proceedings so as to enable the continuation of those proceedings.

2. The trust established by clause 14 of the statutory will of Millie Phillips authorised by an order of the Court of Appeal of the Supreme Court of NSW made on 25 September 2019 shall be governed and administered in accordance with the charitable trust deed annexed to this Summons and marked ‘A’.”

5. The first prayer for relief may be dealt with immediately. On 4 December 2024, the Solicitor General, exercising his delegation for the Attorney General, authorised the continuation of the proceedings pursuant to s 6(2A) of the Charitable Trusts Act 1993 (NSW).

6. The second prayer for relief involves the exercise of the Court’s jurisdiction to approve administrative schemes in relation to charitable trusts. The evidence shows that the value of trust property that would be affected by the scheme exceeds the amount referred to in s 14 of the Charitable Trusts Act and, as such, the application involves the exercise of the Court’s inherent jurisdiction.

7. In University of New South Wales v Attorney General for New South Wales [2019] NSWSC 178 at [34], Ward CJ in Eq (as her Honour then was) noted the clear conceptual difference between a cy-pre**s scheme and an administrative scheme. As her Honour explained, an administrative scheme “enables the court to provide further and detailed machinery for the practical application of the trust property, where the stipulated means for the achievement or pursuit of the charitable objects have not been specified or are not sufficient for the practical application of the gift for the charitable purpose”; see also Perpetual Trustee Company Ltd v Attorney General of New South Wales [2024] NSWSC 257 at [67].

8. There are various circumstances in which the Court will settle an administrative scheme for regulating the application of a charitable gift. One such circumstance is where “the deceased has indicated her purposes and the means by which those purposes are to be achieved, but the means indicated are not sufficient for the practical application of the gift for these purposes, and it is necessary to provide further and detailed machinery”: Phillips v Roberts [1975] 2 NSWLR 207 at 223A (Mahoney JA). In such a case, it is necessary for the Court to be satisfied that the purposes identified in the proposed scheme faithfully reflect the testator’s charitable intentions and that those purposes are charitable purposes in the legal sense.

Mrs Phillips’ charitable intentions

9. I have already referred to the introductory language of clause 14 of the Will at paragraph [2] above. The particular objects identified in that clause are as follows:

”14.1 Anti-Semitism

14.1.1 to combat and confront anti-Semitism in Australia;

14.1.2 to seek to eliminate anti-Semitism in Australia;

14.2 Jewish Accomplishment

14.2.1 to promote and disseminate awareness of the accomplishment of Jews throughout history;

14.2.2 to promote and disseminate awareness of what Jews have given to the world; and

14.2.3 to promote and disseminate awareness of the State of Israel and its accomplishments;

14.3 Jewish Pride

to promote Jewish pride;

14.4 Advocate and Inform

14.4.1 to increase understanding of Israel and its centrality to Jewish life;

14.4.2 to advocate the interests of Jewish communities to government, media and other community organisations

14.4.3 to inform the media and the public about Jews, Israel and the Middle East;

14.4.4 to highlight and counteract instances of anti-Israel bias and misinformation in the media and in wider public debate; and

14.4.5 to amplify Jewish contributions to the world;

14.5 Physical and Existential Security

14.5.1 to ensure the physical and existential security of the Jewish people including protection of their institutions and its digital assets, digital devices and digital accounts;

14.5.2 to ensure the physical and existential security of the State of Israel including protection of its institutions and its digital assets, digital devices and digital accounts; and

14.5.3 to ensure the political and physical security of any Jewish community in Australia including protection of its institutions and its digital assets, digital devices and digital accounts;

14.6 Continuity in Australia

14.6.1 to maintain the unity and cohesion of any Jewish community in Australia; and

14.6.2 to ensure the continuity of any vibrant Jewish community in Australia;

14.7 Combat BDS and Similar Campaigns

to combat the Boycott Divestment Sanctions (BDS) campaign and any similar or comparable campaign or movement in Australia;

14.8 Education

to promote and support a similar fund or funds with similar objects in Australia and/or Israel as my trustee may from time to time decides;

14.9 Intellectual Potential

to put in place such programs as my trustee in its discretion decides, in schools, universities and other education establishments in Australia to promote any and all of the objectives listed above; and

14.10 Ancillary Matters

to do anything aligned, ancillary or incidental to any and all of the above purposes as my trustee in its discretion considers appropriate and in such manner as my trustee in its discretion decides.”

The evidence

10. Each of the plaintiffs gave evidence although, aside from noting his suitability to be a trustee of the proposed trust, there is no need to refer to the second plaintiff’s evidence.

11. The first plaintiff, Mr Philippsohn, gave evidence about numerous aspects of the Jewish community in Australia, its relationship with Israel and the utility of applying funds to the various purposes set out in clause 14 of the Will.

12. The first plaintiff has been formally involved in various leadership roles in the Australian Jewish community since 1980. He was the founding president of Mount Sinai College in Maroubra. He remains a Life Governor of that college. He has also held various roles in the New South Wales Jewish Communal Appeal (JCA) since 1981. The JCA is an umbrella organisation for 24 Jewish community organisations across New South Wales and the ACT. It was established in 1967 to facilitate a coordinated fundraising appeal across the NSW Jewish community and to enable an equitable distribution of funds raised.

13. The first plaintiff was president of the JCA between 2011 and 2014 and has been a Life Governor of the JCA since 2016. He gave uncontested evidence of several matters concerning the Jewish community in Australia that are relevant to the question of whether the particular purposes in clause 14 of the Will are charitable. His evidence was tailored to the particular headings in the Will.

14. The plaintiffs also relied on an uncontested report prepared by Emerita Professor Suzanne Rutland. Professor Rutland is a scholar of the history of Australian Jewry. She was asked to answer a range of questions concerning the Jewish community in Australia that were directed to the particular objects in clause 14 of the Will. Her report has been helpful in understanding the historical and social context in which each of those objects is to be evaluated.

15. It is convenient to summarise the evidence in relation to some of the broad purposes identified in the Will.

Combatting Antisemitism generally

16. Professor Rutland refers to the definition of “antisemitism” adopted by the International Holocaust Remembrance Association (IHRA), of which Australia is a member state, in 2016. That definition, which is not legally binding and which serves as a “working definition” or guide to members of the IHRA, is as follows:

“Antisemitism is a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

17. According to Professor Rutland, antisemitism tends to take three main forms, as follows:

“Religious Antisemitism: In the medieval period, antisemitism was based on religious discrimination, with Christianity, but to a lesser extent Islam, believing Jews to be inferior – as noted in the Catholic prayer of the ‘perfidious Jew’. Various restrictions were placed on Jews, including wearing identifying clothing – referred to as ‘the Jewish badge’; forcing them to live in segregated areas – ghettoes; and severely restricting their economic activities.

Racial Antisemitism: With late nineteenth century secularisation, discrimination against Jews moved from a religion basis to being based on race – that Jews were racially inferior, with conspirac[y] theories of Jews world domination. This culminated with Nazism.

National Antisemitism – Anti-Zionism: Since its creation, antisemitism relating to the Jewish State of Israel has emerged. False claims are made of Israel committing genocide and the normalisations of terms such as ‘theft’, ‘apartheid’, ‘genocide’, ‘ethnic cleansing’ and ‘war crimes’ relating to the Palestinian-Israeli conflict.” (footnotes omitted)

18. Her report explains the significant impact of each of these aspects of antisemitism on the Australian Jewish community. At paragraphs [43] and [44] of her report, she states:

“There has been criticism of the argument relating to this form of antisemitism from left-wing scholars, who argue against the concept of anti-Zionism being antisemitic. They oppose the IHRA definition because they claim it stifles their ability to criticise Israel even though the actual definition caters for legitimate criticism of Israel. Two other definitions have been developed, ‘The Jerusalem Declaration’ and the ‘Nexus Document’. Neither of these have been adopted on a formal international level or more specifically by Australia, and they are not seen by Jewish people to properly define antisemitism.

The IHRA definition has sought to draw on the central concepts of each of these three iterations of antisemitism, all of which are present in our contemporary world, including Australia. The definition particularly focuses on the latest form of antisemitism, in terms of allegations against the State of Israel. It points out, ‘criticism of Israel comparable to any other country is not antisemitism’. The definition aims to illustrate when anti-Zionism crosses the boundary into antisemitism.” (footnotes omitted)

19. In his affidavit, the first plaintiff refers to the 2019 UN Report of the Special Rapporteur on Freedom of Religion or Belief. Chapter II of that report is entitled “Combatting Antisemitism to Eliminate Discrimination and Intolerance Based on Religion or Belief”. Under the heading “Trends in contemporary rhetoric”, the report noted:

“16. The Special Rapporteur is alarmed by the growing use of antisemitic tropes by white supremacists, including neo-Nazis and members of radical Islamist groups, in slogans, images, stereotypes and conspiracy theories meant to incite and justify hostility, discrimination and violence against Jews.

17. The Special Rapporteur also takes note of numerous reports of an increase in many countries of what is sometimes called ‘left-wing’ antisemitism, in which individuals claiming to hold anti-racist and anti-imperialist views employ antisemitism narratives or tropes in the course of expressing anger at the policies or practices of the Government of Israel. In some cases, individuals expressing such views have engaged in Holocaust denial; in others, they have conflated Zionism, the self-determination movement of the Jewish people, with racism, claimed that Israel does not have a right to exist and accused those expressing concern about antisemitism of acting in bad faith. The Special Rapporteur emphasizes that it is never acceptable to render Jews as proxies for the Government of Israel. He further recalls that the Secretary-General has characterized ‘attempts to delegitimize the right of Israel to exist, including calls for its destruction’ as a contemporary manifestation of antisemitism.” (footnotes omitted)

20. At paragraph 18, the Special Rapporteur noted the claims of critics of the Boycott, Divestment and Sanctions (BDS) movement that the objectives, activities and effects of that movement are fundamentally antisemitic. He noted that international law recognizes boycotts as legitimate forms of political expression but stressed that political expression that draws on antisemitic tropes or stereotypes, rejects the right of Israel to exist, or advocates discrimination against Jewish individuals because of their religion, is to be condemned.

21. The first plaintiff drew attention to an alarming increase in the number of antisemitic attacks and threats in Australia in recent years, particularly since 7 October 2023. He also referred to the results of a survey conducted by Dr Adina Bankier-Karp and Dr David Graham of the Australian Centre for Jewish Civilisation (ACJC) at Monash University, published in April 2024. The aim of that survey was to carry out an empirical assessment of the impact of the current conflict between Israel and Hamas on Jewish people in Australia. They reported an unprecedented level of concern about antisemitism in the Australian Jewish community over this period. They also found that many Jews have felt the need to hide their Jewish identity in public. They found that most Jewish people in Australia feel a very strong emotional attachment to Israel. The data collected by the authors of that report showed that “for almost all Jewish people in Australia, Israel is not just another country. Most feel a very strong emotional attachment to the Jewish State.”

22. One of the JCA member organisations is the Community Security Group (CSG) which provides a comprehensive security service to respond to, and mitigate threats to, the Jewish community. The CSG’s 2024 annual report noted that the community has been subject to unprecedented levels of vilification, including serious and unprovoked assaults, since the start of the current conflict.

23. The first plaintiff said that the application of resources to monitor, combat and confront antisemitism in Australia will serve the purpose of:

“a. promoting reconciliation, mutual respect and tolerance between groups in Australia;

b. promoting and protecting human rights;

c. advancing the safety of members of the Australian public or a section of the Australian public, namely members of the Jewish community; and

d. protecting, maintaining, supporting, researching and improving the social welfare of members of the Jewish community.”

Jewish Accomplishment

24. The first plaintiff gave evidence of Jewish communal organisations’ work to promote Jewish accomplishment in the community. He particularly emphasised that knowledge of Jewish accomplishment was instrumental in countering narratives about Jewish people that are disseminated by antisemitic groups and individuals. In his view, the application of resources to promote Jewish accomplishment would benefit the community by:

“a. promoting reconciliation, mutual respect and tolerance between groups in Australia;

b. advancing the safety of members of the Australian public or a section of the Australian public, namely members of the Jewish community;

c. advancing the education of the Australian public;

d. protecting, maintaining, supporting, researching and improving the social welfare of members of the Jewish community; and

e. promoting and fostering culture and caring for, preserving and protecting Australian heritage, namely the accomplishments of members of the Jewish community in Australia.”

Jewish Pride

25. The first plaintiff also gave evidence of the relationship between the pride which members of the Jewish community have in their faith and culture and the advancement of the social welfare of that community. Professor Rutland stresses the importance of religious identity as a form of social capital for members of the Jewish community. She says that antisemitism impacts on the ability of members of the Jewish community to express their religious identity.

Advocate and inform

26. The purposes in clause 14.4 of the Will are concerned with advocacy on behalf of and in relation to the Jewish community, advocacy and education about the centrality of Israel to Jewish life, education to counteract anti-Israeli bias, and education about Jewish contributions to the world. The first plaintiff points to the fact that, in relation to all of these purposes, misinformation and bias about Jews and the state of Israel is present in the Australian community. He says that the application of resources in accordance with clause 14.4 of the Will would serve the purposes of:

”a. promoting reconciliation, mutual respect and tolerance between groups in Australia;

b. advancing the education of members of the wider Australian public and of members of the Jewish community;

c. advancing the safety of members of the Australian public or a section of the Australian public, namely members of the Jewish community; and

d. protecting, maintaining, supporting, researching and improving the social welfare of members of the Jewish community.”

Physical and existential security

27. Professor Rutland says that the State of Israel plays a very important part in Jewish identity generally. She explains that in Jewish belief there is an integral connection between the Land of Israel and Jewish people based on the Abrahamic covenant with God in the Five Books of Moses, Genesis 17. She refers to various surveys demonstrating the strong connection between the State of Israel and the Jewish community in Australia. She also points out that there is little education about Israel in primary and secondary non-Jewish school curricula. Even at the tertiary level in Australia, despite the topic of Israel being frequently the subject of discussion, there are very few courses devoted to it.

28. The Plenary behind the IHRA working definition of antisemitism gave as an illustration:

“Manifestations [of antisemitism] might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic.

Antisemitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for ‘why things go wrong’. It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits.”

29. The first plaintiff points out that the presence of antisemitism in the community has elevated the risk of harm to the physical security of members of the Jewish community. So far as the security of the State of Israel is concerned, he referred to the survey conducted by the ACJC and to its conclusions concerning the close relationship between members of the Australian Jewish community and Israel. He says that the application of funds to the security of the Jewish people and the State of Israel will serve to uphold the rights, safety and security of the Australian Jewish community.

Continuity in Australia

30. The first plaintiff explains the significance of encouraging the continuity of the Jewish community in Australia. The first plaintiff points to successful initiatives run by the JCA to engage the next generation of Australian Jews, which have directly led to an increase in engagement in younger demographics. In his view, the application of funds to support the continuity of the Jewish community will serve to advance the Jewish culture and religion.

Combatting BDS and similar campaigns

31. I have already referred to the connection which Professor Rutland identifies between anti-Zionism and antisemitism. I have also referred to the Special Rapporteur report.

32. The first plaintiff says that the BDS movement is premised on the belief that Israel is an apartheid state. The uncontested evidence describes particular instances in which criticism of Israel by proponents of the BDS movement crossed the line from ordinary political discourse to antisemitic hate speech. The first plaintiff gave evidence that much of the Australian Jewish community views the BDS movement as engaging in the spread of misinformation about the geopolitical situation in Israel in a manner that incites discrimination and hatred against Jews, both in Israel and in Australia. The first plaintiff referred to the 2020 Executive Council of Australian Jewry report on antisemitism in Australia.

33. The first plaintiff also explained that local Jewish community organisations devote resources to combat misinformation spread by the BDS movement, such as through interfaith bodies and events and through general community education programs. He said that the application of funds to support the purposes in clause 14.7 will serve much the same ends as identified in relation to antisemitism generally, namely by promoting reconciliation, mutual respect and tolerance between groups in Australia, protecting rights and advancing the safety of members of the Australian Jewish community and the Australian community generally.

The scheme generally

34. The scheme propounded by the plaintiffs is set out in the draft Northfield Foundation Deed annexed to the summons. It is unnecessary to set the Deed out in its entirety. However, it is appropriate to reproduce clause 2.2.

“2.2 Subject to the provisions of clause 2.4 of this Deed, the Trustee shall apply the Trust Fund and the income thereof (including any income which may be derived by the Trust as a beneficiary of or which may be allocated to the Trust by the Trustee of any other trust or trust fund whether now in existence or hereafter to be established) for in or towards:

(a) Antisemitism

(i) to combat and confront antisemitism in Australia;

(ii) to seek to eliminate antisemitism in Australia;

(b) Jewish Accomplishment

(i) to promote and disseminate awareness of the accomplishment of Jews throughout history;

(ii) to promote and disseminate awareness of what Jews have given to the world; and

(iii) to promote and disseminate awareness of the State of Israel and its accomplishments;

(c) Jewish Pride – to promote Jewish pride;

(d) Advocate and inform

(i) to increase understanding of Israel and its centrality to Jewish life

(ii) to advocate the interests of Jewish communities to government, media and other community organisations;

(iii) to inform the media and the public about Jews, Israel and the Middle East;

(iv) to highlight and counteract instances of anti-Israel bias and misinformation in the media and in wider public debate;

(v) to amplify Jewish contributions to the world;

(e) Physical and Existential Security

(i) to ensure the physical and existential security of the Jewish people including protection of their institutions and their digital assets, digital devices and digital accounts;

(ii) to ensure the physical and existential security of the State of Israel including protection of its institutions and its digital assets, digital devices and digital accounts; and

(iii) to ensure the political and physical security of any Jewish community in Australia including protection of its institutions and its digital assets, digital devices and digital accounts;

(f) Continuity in Australia

(i) to maintain the unity and cohesion of any Jewish community in Australia; and

(ii) to ensure the continuity of any vibrant Jewish community in Australia;

(g) Combat Boycott Divestment Sanctions and similar campaigns –

to combat the Boycott Divestment Sanctions campaign and any similar or comparable campaign or movement in Australia;

(h) Education –

to promote and support a similar fund or funds with similar objects in Australia and/or Israel as the Trustee may from time to time decide;

(i) Intellectual Potential –

to put in place such programs as the Trustee in their discretion decide, in schools, universities and other educational establishments in Australia to promote any and all of the objectives listed above; and

(j) Ancillary Matters –

to do anything aligned, ancillary or incidental to any and all of the above purposes as the Trustee in its discretion considers appropriate and in such manner as the Trustee in its discretion decides.”

35. As can be seen, the objects or purposes enumerated in clause 2.2 are identical, save for some very minor differences, to those in clause 14 of the Will.

36. Taken as a whole, the key features of the proposed scheme are as follows:

37. The charitable trust will be known as the Northfield Foundation;

38. There will be a corporate trustee, Northfield Foundation Limited (Trustee);

39. The Trustee will be a company limited by guarantee. The Deed provides that the board of directors must include at least four members at all times, the majority of whom are to be “Responsible Persons” as defined therein. The Trustees also must include Mr Anthony Small and Ms Sharonne Phillips (two lineal descendants of Mrs Phillips) so long as they consent: clause 6.2. The two plaintiffs are proposed to be the two other founding directors of the Trustee;

40. The trust property is the Trust Fund as defined in the Deed, which includes substantial starting capital from the residuary estate of the late Mrs Phillips;

41. The Trustees shall apply the Trust Fund and the income thereof for the purposes set out in clauses 2.2(a)-(j) of the Deed. Those purposes are expressed in essentially the same terms as the charitable objects set out in clause 14 of the Will;

42. The Northfield Foundation is established as and must operate as a not-for-profit entity (clause 2.5) and is established and must operate and pursue its purposes and incur its expenditure principally in Australia (clause 2.6);

43. The Deed sets out machinery provisions for the administration of the Northfield Foundation, including provisions for the application of the Trust Fund (clause 3), investment limitations (clause 4), appointment and removal of the Trustee (clause 6), proceedings of the Trustee (clause 7), remuneration (clause 10), powers (clause 11), disclosure and management of any conflicts of interest (clause 12), liability (clause 18), indemnity (clause 19), and other provisions.

44. There is no question that the Deed accurately reflects Mrs Phillips’ intentions as stated in clause 14 of the Will and that, overall, it is an appropriate scheme by which to give effect to those intentions. It is however necessary for me to be satisfied that each of the objects or purposes for which she intended her residuary estate to be applied is charitable in the legal sense.

Charitable purposes

38. For a trust to be charitable, it must fall within the “spirit and intendment” of the Statute of Charitable Uses 1601 (43 Eliz I, c 4) (the Statute of Elizabeth), being trusts for the relief of poverty, for the advancement of education, for the advancement of religion and for other purposes beneficial to the community: Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 at 583 (Lord Macnaughton); Chesterman v Federal Commissioner of Taxation (1925) 37 CLR 317 at 319-320; Incorporated Council for Law Reporting (Q) v Federal Commissioner of Taxation (1971) 125 CLR 659; [1971] HCA 44 (Incorporated Council) at 666 (Barwick CJ); Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 (Aid/Watch) at 548.

39. The submissions before me proceeded, appropriately, by reference to the four classes identified by Lord Macnaughton. It is however necessary to keep in mind that those classes are not exhaustive: Incorporated Council at 667 (Barwick CJ). In Aid/Watch, the majority (French CJ, Gummow, Hayne, Crennan and Bell JJ) said at [13] that the “equity of the preamble may operate upon additional matters and circumstances which lie beyond its actual terms.”

40. Their Honours further explained at [18]:

“The speech of Lord Macnaghten in Pemsel is the source of the modern classification of charitable trusts in four principal divisions, namely, trusts for the relief of poverty, for the advancement of education, for the advancement of religion and for other purposes beneficial to the community. But even in 1891, the case law which gave the term ‘charitable’ its technical meaning had developed considerably since the time of the British income tax statute of 1799. The case law may be expected to continue to do so as the cases respond to changed circumstances. As Lord Wilberforce put it, the law of charity is a moving subject which has evolved to accommodate new social needs as old ones become obsolete or satisfied.”

41. Although the parties drew my attention to a number of cases that dealt with what were said to be analogous circumstances, it is necessary for the Court to be satisfied in any given case that the particular trust or purpose is charitable: Incorporated Council at 666 (Barwick CJ). Analogies can only provide so much assistance. I will say more about what is required to bring a purpose within the scope of particular categories in the context of dealing with the specific purposes below.

42. The Attorney General submitted that it is open to the Court, based on the evidence, to be satisfied that all of the purposes in clause 14 of the Will are charitable in the legal sense. The plaintiffs placed significant emphasis on this concession. They also particularly relied on what was said by the Court of Appeal as to the character of clause 14 generally (as to which, see [3] above), such that this Court already had a ”very good start” in approving the scheme without much further inquiry. I do not however consider that it would be appropriate to approach the matter in quite that way. In relation to some purposes, the Attorney General’s final oral submissions went no further than to submit that it was open to the Court to conclude that a purpose was charitable in the legal sense. Furthermore, what was said by the Court of Appeal in Small v Phillips and Small v Phillips (No 2*)*, in the context of making the statutory will, was as to the purposes in clause 14 generally. I give weight to those observations in reaching my conclusions, but I do not consider that I am bound by them to conclude that each individual purpose identified in clause 14 of the Will is charitable.

Clause 14.1 - Antisemitism

43. The principal basis upon which clause 14.1 is said to be charitable is that it falls within the fourth category in the preamble. In order to fall within the fourth category, a purpose must satisfy a two-stage test: it must be for the benefit of the community or a part of the community; and it must otherwise be within the spirit and intendment of the preamble: see G E Dal Pont, Law of Charity (3rd ed, 2021, LexisNexis) (Dal Pont) at [11.3] and the authorities there cited.

44. So far as concerns the first stage, it has been said that “the benefit in issue must be affirmatively proved or clear to the court. The term ‘beneficial’ requires independent examination once the purposes and the ultimate beneficiaries have been ascertained”: Dal Pont at [11.4].

45. The second limb involves the making of an evaluative judgment about a particular purpose which typically proceeds, albeit sometimes a little clumsily, by analogy to decided cases.

46. The evidence demonstrates that there is an acute social need to combat antisemitism, not just for the benefit of the Jewish community but the Australian community as a whole. So far as the Jewish community is concerned, there is a profound interest in combatting antisemitism and seeking to eliminate it. The evidence shows that the Jewish community is a vulnerable group in need of protection. These matters demonstrate that clause 14.1 is beneficial to the community in the requisite sense.

47. So far as concerns the second limb of the test, the fourth head has frequently been invoked in the context of gifts for the benefit and protection of members of the community in need of particular protection and assistance, such as Aboriginal persons: Trustees of the Indigenous Barristers*’* Trust v Commissioner of Taxation (2002) 127 FCR 63; [2002] FCA 1474 (Gyles J); Aboriginal Hostels Ltd v Darwin City Council (1985) 55 LGRA 414 at 428-429 (Nader J); Shire of Derby-West Kimberley v Yungngora Association Inc (2007) 157 LGERA 238; [2007] WASCA 233 at [54]-[57] (Newnes AJA, with Buss and Miller JJA agreeing).

48. The fourth head has also provided a basis to justify trusts for the preservation of public order: Downing v Federal Commissioner of Taxation (1971) 125 CLR 185; [1971] HCA 38 (Downing) at 198, with Walsh J citing Lord Normand in Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] AC 380 at 391. Antisemitism presents a threat to public order generally and not just the welfare of its direct targets. A purpose of eliminating antisemitism benefits the community as a whole and is within the spirit of the preamble in much the same way.

49. The Attorney General identified a number of additional cases in which purposes broadly analogous with those in the Will were held to be within the fourth class, such as:

50. the relief of human suffering and distress (McGovern v Attorney-General [1982] 1 Ch 321 at 333 (Slade J));

51. the elimination of war (Re Blyth [1997] 2 Qd R 567 at 579-581 (Thomas J));

52. raising moral standards or outlook (Barby v Perpetual Trustee Co (Ltd) (1937) 58 CLR 316; [1937] HCA 64 at 324 (Dixon J); and

53. elevating human sentiment and conduct (Re Inman [1965] VR 238 at 242 (Gowans J)).

54. The Attorney General also submitted that there are long standing social norms against discrimination on religious grounds in New South Wales and that those norms are reflected in legislation. The Attorney General pointed to:

55. section 116 of the Commonwealth of Australia Constitution Act 1901 (UK), which forbids the enactment of Commonwealth laws which prohibit the free exercise of any religion;

56. part 2 of the Anti-Discrimination Act 1977 (NSW) which prohibits racial discrimination in various contexts, where “race” is defined in s 4 to include “ethno-religious... origin”

57. Part 4BA of the Anti-Discrimination Act which prohibits public acts of hatred, serious contempt or severe ridicule of a person or a group of persons based on their religious beliefs and engagement in religious activity (or lack thereof); and

58. article 26 of the International Covenant on Civil and Political Rights (1966) 999 UNTS 171 which prohibits discrimination on the ground of religion. The Covenant was ratified by Australia in 1980 and was incorporated into the function of the human rights commission: ss 3 and 11 of the Australian Human Rights Commission Act 1986 (Cth).

59. I am satisfied that the purposes in clause 14.1 are charitable because they are within the fourth class. Because I have reached this conclusion, I do not find it necessary to resolve the question, also debated before me, of whether the purpose of eliminating antisemitism is also charitable by reason of being for the advancement of religion.

Clause 14.2 – Jewish Accomplishment

52. The principal basis on which this clause was said to be charitable was that it was for the purpose of education. In Re Estate of Murphy [2005] NSWSC 104 at [37], the Court said:

“… In Tudor on trusts, 9th edition, the learned author says at 2.020 …. Whilst ‘educating’ has consistently been given a wide meaning, a gift to increase the sum of knowledge available without provision for propagating it has been said not to be charitable. (Re Shaw (1957) 1 WLR 729). A useful summary of the distinction is made by Iacobucci J in Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue (1999) 169 DLR (4th) 34 at 113:

‘(T)he threshold criterion for an educational activity must be some legitimate targeted attempt at educating others, whether through formal or informal instruction, training, plans of self-study or otherwise. Simply providing an opportunity for people to educate themselves, such as by making available materials with which this might be accomplished but need not be, is not enough.

…Secondly, the purpose must not be propagandist. The public must be presented with neutral information so that they can choose for themselves: Re Bushnell (Deceased) (1975) 1 All ER 721 at 729 per Golding J and cannot be presented with slanted and selective information in support of a pre-conceived point of view.’”

53. I do not consider that any part of clause 14.2 falls into the trap identified by Iacobucci J of being propagandist. The facts may be contrasted with those considered in Re Collier [1998] 1 NZLR 81, where the purpose was education directed to a single idea. Here, by contrast, the purpose concerns quite general subject matters.

54. It is also necessary for an educational purpose to be beneficial to the community. The Attorney General did not suggest that that criterion was not present here. Professor Rutland’s report shows that education about these subjects is otherwise lacking in non-Jewish curricula. I am satisfied that the expenditure of funds on the purposes in clause 14.2 would be beneficial to the community. The purposes are therefore charitable.

Clause 14.3 – Jewish Pride

55. There was some debate before me as to whether this purpose was most appropriately seen as being only within the fourth class or whether it might also be for the advancement of education or religion.

56. In my view, the evidence demonstrates that this purpose is at least within the fourth class. The plaintiffs relied on Kostka v Ukrainian Council of NSW Inc [2013] NSWSC 222, where the Court considered a gift to “Ukrainian Women Association in Lidcombe” in circumstances where the evidence revealed that the principal purpose of an organisation fitting that description was “to unite all women of Ukrainian origin who support the Ukrainian language, culture and traditions and who support the creation and development of an independent Ukrainian nation.”

57. Young AJ found the gift to be charitable. In reaching his conclusion, his Honour said at [45]:

“… in twenty-first century New South Wales a trust in favour of a group of women of a particular ethnicity, who seek more than mere recreation and social intercourse, but also to assist people of the same ethnic group and spread that culture to further the community purposes of a group of Australians of a certain ethnic origin, is a charitable gift.”

58. I reach a similar conclusion here. The gift is not for the purpose of mere recreation or social intercourse (cf Kostka at [37]). It is directed towards galvanising a vulnerable section of the community in circumstances where that community is under particular threat.

59. I am also satisfied that this particular gift pursues a purpose within the third class, being the advancement of religion. That is because, as explained by both the first plaintiff and Professor Rutland, there is a strong connection between Jewish pride and religious belief. In Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1; [1934] HCA 14 (Lawlor), Dixon J said at 32:

“In order to be charitable the purposes themselves must be religious; it is not enough that an activity or pursuit in itself secular is actuated or inspired by a religious motive or injunction: the purpose must involve the spread or strengthening of spiritual teaching within a wide sense, the maintenance of the doctrines upon which it rests, the observances that promote and manifest it (cf. Keren Kayemeth Le Jisroel Ltd. v. Inland Revenue Commissioners).”

60. His Honour tempered those observations by saying that “whether defined widely or narrowly, the purposes must be directly and immediately religious.”

61. In my view, the promotion of Jewish pride is directly and immediately religious. The gift does not seek to advance a purpose that could be said only to be incidental to Jewish faith. Rather, it seeks to strengthen religious faith by instilling pride in members of the Jewish community.

Clause 14.4 – Educate and inform

62. Clause 14.4 includes reference to five separate purposes. There is no question that clauses 14.4.1, 14.4.3 and 14.4.5 refer to educational purposes and that those purposes are beneficial to the community. I am satisfied that they are charitable.

63. A question arises as to whether and on what bases the purposes in clauses 14.4.2 and 14.4.4 are charitable. The difficulty arises because, at least on one view, they can be characterised as polemical in the sense that they are intended to persuade people to a particular point of view: cf Heydon J in Aid/Watch at [62].

64. However, the evidence demonstrates a strong connection between the promotion of Jewish interests and the physical protection of the Jewish community in Australia. Recent history, as described by Professor Rutland, demonstrates the need for the promotion of Jewish interests as one means of protecting the Jewish community from the threat of antisemitism. In my view, these clauses can be said to be for the benefit of the community within the fourth class of charitable purposes. The evidence in this particular case shows that what might, in a different factual context, be a somewhat polemical educational purpose, can nonetheless be seen as being for the benefit of the community generally and within the spirit of the preamble because of its close analogy with educational purposes.

Clause 14.5 – Physical and existential security

65. Clauses 14.5.1 and 14.5.3 are directed to a matter that is at least within the fourth class of charitable purpose. The purposes expressed in these clauses are evidently beneficial to the Jewish people. The Attorney General submitted, and I agree, that appropriate analogies may be drawn between these purposes and the cases to which I referred at paragraph [49] above.

66. The reference to digital assets and accounts does not detract from this conclusion because the evidence shows that antisemitism is particularly prevalent online.

67. However, different considerations arise in relation to clause 14.5.2. The difficulty here is that the object of this clause is the state of Israel and not the Jewish people, who are the object of the near identical clause 14.5.1. The Attorney General submitted that it may be contrary to public policy to recognise as charitable a gift for the purpose of promoting the security of a foreign state, even an ally such as Israel.

68. The plaintiff referred me to a number of cases in which gifts for purposes within Israel have been held to be charitable:

69. In Goldwyn v Mazal [2003] NSWSC 427, Bryson J held that a gift that benefited the neurologically impaired and the communicatively handicapped in Israel was charitable. His Honour held that it was not necessary for the purpose to be beneficial to the public of New South Wales.

70. Re Stone (1970) 91 WN (NSW) 704 concerned funds that were left on trust for the benefit of the Jewish National Fund of New South Wales, an organisation whose principal object was to support and raise money for an organisation that purchased land in Israel and settled Jews thereon. Helsham J held that the gift was charitable as it was beneficial to the community within the spirit of the Statute of Elizabeth.

71. In Re Levy Estate (1989) 58 DLR (4th) 375 the Ontario Court of Appeal approved a gift left “unto the State of Israel for charitable purposes only”.

72. Holland J found, in Lander v Whitbread [1982] 2 NSWLR 530, that a gift to be held “IN TRUST for the Government of the State of Israel for the advancement of education in that state” was a valid charitable gift.

73. There are also a number of cases where gifts relating to national security and defence have been held to be charitable. For example in Re Driffill [1950] Ch 92, the Court of Chancery upheld a gift “to promote the defence of the United Kingdom from the attack of hostile aircraft”.

74. However, the parties were unable to refer me to any authority in which a gift for the security of a foreign state has been held to be charitable.

75. So far as the evidence is concerned, there is unquestionably a clear and close connection between Jewish identity and Israel. One outcome of pursuing the purpose in clause 14.5.2 would be a strengthening of Jewish identity, including in Australia.

76. As I have noted, in order to fall within the fourth category, a purpose must satisfy a two-stage test: it must be for the benefit of the community or a part of the community; and it must otherwise be within the spirit and intendment of the preamble of the Statute of Elizabeth.

77. So far as concerns the first stage, the direct beneficiary of clause 14.5.2 is a polity, Israel, and the way it is intended to benefit from the Will is by way of payments towards its physical and existential security. The physical and existential security of any state is unquestionably of vital importance to its citizens and, in that sense, it can be said that the people of Israel are the ultimate beneficiaries of clause 14.5.2. There being no question that their physical and existential security, and that of their digital assets, is of real benefit to them, I am prepared to find that clause 14.5.2 satisfies the first limb of the test.

78. However, I am unable to conclude that the gift is otherwise within the spirit and intendment of the preamble. As already mentioned, this aspect of the inquiry typically proceeds by analogy to decided cases. This case was no exception. In the case of a gift for the physical and existential security of a foreign state, analogies – even loose analogies – are simply not to be found. There is a fairly significant difference between clause 14.5.2 and a gift for an otherwise charitable purpose to be carried out in a foreign state. I note that the gift in Re Levy Estate was qualified by the requirement that it be for “charitable purposes in” Israel. There is also a fairly significant difference between clause 14.5.2 and gifts for the physical defence or security of the state in which both the donor and the Court are resident, or for the armed forces of that state, such as discussed in Downing at 198 (Walsh J).

79. The plaintiffs submitted that it is clear in the text of clause 14.5.2 that the clause is not “focused on promoting the military in, or security of, Israel”. Whilst it is true that the examples within the clause, “protection of its institutions and its digital assets,” are not necessarily related to military or physical protection, it is the case that the primary goal of the clause, namely ensuring “the physical and existential security of the State of Israel,” would extend to promoting the physical security of Israel through military or any other necessary means.

80. The plaintiffs sought to support clause 14.5.2 on the basis that it also pursues the advancement of religion and education. However, I am not persuaded that this is so. The evidence indicates, as I have mentioned, an intimate connection between Jewish identity in Australia and the State of Israel. However, it does not follow that a purpose of ensuring the physical security of Israel is “directly and immediately religious” simply because of this connection (Lawlor at 32) so as to render the purpose expressed in clause 14.5.2 charitable. Nor is it possible to characterise the purpose as being educational.

81. I am therefore unable to conclude that clause 14.5.2 expresses a purpose that is charitable in the legal sense.

Clause 14.6 – Continuity in Australia

78. In my view, the purposes expressed in clause 14.6 are charitable for essentially the same reasons as the purpose expressed in clause 14.3, which is entitled “Jewish pride”.

Clause 14.7 – Combatting BDS and similar campaigns

79. The plaintiffs sought to uphold this gift by reference to the second and fourth classes of charity.

80. Before coming to either of those arguments, it is necessary to be satisfied that the purpose is exclusively charitable: see Dal Pont at [13.1] and the authorities there cited, including Attorney-General v Adams (1908) 7 CLR 100; [1908] HCA 51 (Barton J) and Smith v West Australian Trustee Executor and Agency Co Ltd (1950) 81 CLR 320; [1950] HCA 32 at 323.

81. So far as the evidence is concerned, Professor Rutland’s report demonstrates that anti-Israel movements such as BDS have had a direct and significant effect on Jews in Australia. In her view, a consequence of anti-Israel demonstrations and boycotts within Australia is that Australian Jews tend to feel personally threatened and intimidated. She points out that much BDS activity, particularly on campuses, is directed towards Jewish students. She cites research showing that almost two-thirds of Jewish university students in Australia have experienced antisemitism and over one-half conceal their Jewish identity. She also notes that BDS activity has become quite mainstream and is now strongly promoted in social media, particularly since 7 October 2023.

82. Clause 14.7, however, is not directed only at combatting the particular kinds of campaigns or activities described in the evidence, such as those activities directed towards Jewish students. It is a purpose of “[combatting] the Boycott Divestment Sanctions (BDS) campaign and any similar or comparable campaign or movement in Australia” generally.

83. The very general expression of purpose in clause 14.7 makes it difficult to conclude that the clause is exclusively charitable unless it can be said that all activities of the BDS movement – and all movements like it – are and will always be necessarily antisemitic in all respects. I accept that the material on which the plaintiffs rely in relation to this issue would likely provide a basis for the trustees, acting within the scope of their powers under the Northfield Foundation Deed, to make payments directed at combatting the kinds of activities of the BDS movement, or similar movements, described in the evidence, on the basis that such payments were made for the purpose of combatting antisemitism and possibly also for other purposes which I have held to be charitable. Much would depend on the particular activities in question.

84. I am however unable to conclude that a purpose of opposing all activities of such movements in the future would be exclusively charitable.

Clauses 14.8, 14,9 and 14.10 – other purposes

85. No question arises as to the remaining three purposes. They are in the nature of either catch-all educational purposes (clauses 14.8 and 14.9) or incidental purposes (clause 14.10). A charitable organisation may also have objects that are incidental or ancillary to its main charitable objects: Tasmanian Electronic Commerce Centre Pty Ltd v Commissioner of Taxation (2005) 142 FCR 371; [2005] FCA 439 at [41] (Heerey J).

Orders

86. I am satisfied that all of the purposes identified in clause 14 of the Will, save for clause 14.5.2 and clause 14.7, are charitable. The proposed Deed is an appropriate scheme to give effect to those charitable purposes, save for clauses 2.2(e)(ii) and 2.2(g).

87. I therefore direct the parties to submit a revised form of the Northfield Foundation Deed that excises clauses 2.2(e)(ii) and 2.2(g). Once received, I will make orders in chambers approving a scheme in those terms.

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