Supreme Court of WA|1999-07-30|Before: Martin CJ, Kiefel J, Wheeler J

Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108 (30 July 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SHIRE OF ASHBURTON -v- BINDIBINDI COMMUNITY ABORIGINAL CORPORATION [1999] WASC 108

Aboriginals - Local Government - Incorporated Aboriginal Association - Liability to pay rates - "Vesting" of land - Charitable purpose exemption - Use of the land

Fees and charges - Service charges - Power to impose - Refuse collection

Ashfield Municipal Council v Joyce (1976) 1 NSWLR 455

Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 157 ALR 414

Bowen v Stratigraphic Explorations Pty Ltd [1971] WAR 119

City of Perth v Crystal Park Limited (1940) 64 CLR 1523

Commissioner of Land Tax v Christie [1973] 2 NSWLR 526

Flynn v Mamarika, unreported: SCt of NT (Martin CJ); 20 March 1996

Grain Elevators Board (Victoria) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70

Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] UKHL 1; [1953] AC 380

JL Holdings Pty Ltd v State of Queensland, unreported; FCA (Kiefel J); 6 March 1998

Joyce v Ashfield Municipal Council (1959) 4 LGRA 195

Knowles v Newcastle Corporation [1909] HCA 72; (1909) 9 CLR 534

Launceston Corporation v The Hydro-Electric Commission (Tasmania) [1959] HCA 12; (1959) 100 CLR 654

London Hospital Medical College v Inland Revenue Commissioners [1976] 2 All ER 113

Mayor and Councillors of The Municipality of North Fremantle v Saw [1906] WAR 164

Metropolitan Fire Brigades Board v Federal Commissioner of Taxation (1990) 97 ALR 335

Nungera Cooperative Society v MacLean Shire Council (1991) 73 LGRA 178

Randwick Municipal Council v Rutledge [1959] HCA 63; (1959) 102 CLR 54

Re Caboolture Aero Club (Inc) (1994) 84 LGERA 133

Re Macduff [1976] 2 Ch 451

Roman Catholic Bishop of Perth v Perth Road Board [1933] HCA 7; (1933) 49 CLR 37

Ryde Municipal Council v Macquarie University [1978] HCA 58; (1977) 139 CLR 633

Salvation Army v City of Richmond [1956] VicLawRp 42; [1956] VLR 250

State Government Insurance Office v City of Perth (1987) 71 LGRA 123

Trustees of Church Property for Diocese of Newcastle v Lake Macquarie Shire Council (1973) 26 LGRA 408

Trustees of the Congregation of Marist Brothers v Holroyd Municipal Council (1959) 4 LGRA 367

Ward v State of Western Australia [1998] FCA 1478; (1998) 159 ALR 483

Western Australian Baptist Hospital and Homes Trust Inc v The City of South Perth [1978] WAR 65

Western Australia v Gale (1996) 15 WAR 464

1 The plaintiff is a local government authority suing to recover rates levied on land known as Reserve 23706 or as Onslow Lot 655 ("the Land"). The defendant is an incorporated Aboriginal association pursuant to the Aboriginal Councils and Associations Act 1976 (Cth).

2 On 10 August 1990 the Land, which had been set apart as a reserve for the purpose of "Natives" in 1953, then later vested with the Minister for Community Welfare and with the Noualla Aboriginal Community Inc, became vested in the defendant pursuant to s 33 of the Land Act 1933 (WA), for the purpose of "Use and Benefit of Aboriginal Inhabitants".

3 The defendant denies that it is liable to pay rates in respect of the Land because:

1 it is not the "owner" of the Land for the purposes of s 1.4 Local Government Act 1995 (WA), and is therefore not liable to pay rates for it; or

2 the Land is not rateable since it is used exclusively for charitable purposes within the meaning of s 6.26(2)(g) Local Government Act 1995; or

3 the Land is not rateable as it is the property of the Crown and is used or held for a public purpose within the meaning of s 6.2(2)(a)(i) of the Local Government Act 1995.

4 Although the statement of claim asserts that the defendant is liable to pay rates on the Land in the period 1990-1997, the only statutory authority pleaded for the levying of rates is the Local Government Act 1995, which became operative from 1 July 1996. As I understand the present position of the parties, the plaintiff seeks to determine only the question of liability to pay rates and service charges levied under the 1995 Act. The issues of principle are similar, although there are some differences in wording of relevant provisions between the 1995 Act and its predecessor, so that it is likely that the principles enunciated in this case will be applicable to rates purportedly levied under the Local Government Act 1960. However, in what follows I deal only with the 1995 Act. Issues also arise in relation to certain "rubbish charges" which the plaintiff seeks to recover.

5 The plaintiff points to two aspects of the definition of "owner" in s 1.4 of the Act which may have the effect that the defendant is liable to pay rates as owner. They are, pars (a)(iv) or par (d). Relevant portions of the definition read as follows:

(i) the holder of an estate of freehold in possession in the land ...;

(iv) a trustee ... of a holder ... mentioned in this paragraph;

(d) where a person is lawfully entitled to occupy land which is vested in the Crown, and which has no other owner according to paragraph (a), (b) or (c) of this definition, means the person so entitled."

6 The argument based upon par (a)(iv) can I think be shortly disposed of. It depends upon the Crown being a person who is in possession "as the holder of an estate of freehold". Although the argument was not abandoned by the plaintiff, it was but faintly put. It has a fundamental conceptual flaw. That flaw is that the essence of the doctrine of tenure is that the Crown holds paramount title to land, so that all estates of freehold are held not by the Crown, but of the Crown. I do not think authority is necessary for this proposition. The concept is succinctly discussed in Bradbrook, "Australian Real Property Law" (2nd ed) par 2.13 to par 2.16.

7 Additionally, the nature of the Crown's title to land is examined in detail in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, in terms which make it clear that the Crown's interest, now referred as "radical title" is not an estate of freehold. I note that the distinction between the radical title of the Crown and an estate of freehold is recognised in the structure of the Land Administration Act 1997 (WA), which defines "Crown land" as exclusive of "alienated land", which in turn is defined as land held in freehold. The distinction recognised in the definitions is carried through in substantive provisions of that statute, e.g., s 82. To regard the Land in question here as falling within par (a)(iv) would be contrary to both common law principles of land tenure, and the statutory structure under which Crown land administration in this State is carried out.

8 So far as par (d) is concerned, there appears to be no dispute that the defendant is lawfully entitled to occupy the Land and that the Land has no other owner. The issue is whether the Land can be described as "vested in the Crown". It is asserted by the plaintiff, in my view correctly, that the expression "vested in the Crown" is an expression which, while probably not a term of art, has long been understood as encompassing all land of which the Crown holds what would now be described as "radical title". This proposition is supported by the detailed examination of the history of executive and legislative dealings with land in the Australian colonies which is to be found in the judgment of Windeyer J in Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 and of Barton ACJ and Isaacs J in Williams v Attorney General for New South Wales [1913] HCA 33; (1913) 16 CLR 404.

9 The "vesting" of land pursuant to s 33 of the Land Act 1933 does not appear to alter the status of land as land vested in the Crown in the sense to which I have referred. The scheme of Part III of the Land Act 1933, within which s 33 was contained, distinguished between reservation and disposition of land; s 29(1), s 33(1)(b)(iv). Vesting, pursuant to s 33, gave the person in whom the land was vested, no more than the degree of care, management and control necessary to carry out the vested purpose. This may be seen from the sections to which I have referred, together with s 33(2) and s 34B.

10 The Land Administration Act 1997 in Part IV, which, like Part III of the 1933 Act deals with reserves, replaces the "vesting" procedure with one by which the Minister may "place with any ... person ... the care, control and management of a reserve ...". Comparing the two Acts, it appears that the 1997 Act does not intend substantial differences in the regime relating to reserves, but only a modern terminology and clearer and more streamlined procedures.

11 The view that the "vesting" of land under s 33 of the Land Act 1933 does not alter the status of lands as being "vested in" the Crown in the sense of being the subject of the Crown's radical title, appears to be supported by the observations of the Privy Council in Attorney General for Quebec v Attorney General for Canada [1921] 1 AC 401, concerning the elastic meaning of the term "vest". Although the statute there in question was different in many respects from the Land Act 1933 (WA), the statutory purpose appears to me to have been broadly similar to that of s 33, and it was in that context that their Lordships understood the term "vest" to have essentially the narrow meaning, of "control".

12 It follows that the defendant falls within par (d) of the definition of "owner" in s 1.4.

13 It was accepted by both parties that the expression "charitable" is used in the Local Government Act 1995 (WA) in its legal sense. Charity in its legal sense was said by Lord MacNagten in Commissioners for Special Purposes of Income Tax v Pemsel [1891] UKHL 1; [1891] AC 531 at 583 to comprise four principal divisions, they being: the relief of poverty; the advancement of education; the advancement of religion; and other purposes beneficial to the community not falling under any of the preceding heads. In relation to the relief of poverty, it may not be necessary for those benefiting to be an appreciable section of the community for the purpose to be charitable (Dingle v Turner [1982] 1 All ER 878), but it is otherwise accepted that a purpose must be for the benefit of the community or an appreciably important class of it, and not merely for the benefit of particular private individuals, before it can be considered to be charitable (Williams Trustees v Inland Revenue Commissioners [1947] UKHL 1; [1947] AC 447).

14 The focus of the exemption in the Act is upon the use of land rather than upon its ownership. In some of the cases to which I was referred, there was an exemption for land owned by an institution of a particular character, and the characterisation of the institution was the task facing the court. However, under the Act, as under its predecessor, the Local Government Act 1960, the question is whether the land is used and occupied exclusively for charitable purposes, whether or not it is owned by an institution which may be classified as a charitable institution. The objects of the institution owning the land may throw some light upon the use but they are by no means conclusive: Shire of Nunawading v The Adult Deaf and Dumb Society of Victoria [1921] HCA 6; (1921) 29 CLR 98 at 103. Although the statute provides that the land must be used and occupied "exclusively" for charitable purposes in order to benefit from the exemption, authority establishes that land will be used exclusively for such a purpose "if its main purpose was charitable although it might have other purposes which were merely concomitant and incidental to that purpose": Salvation Army (Victoria) Property Trust v Ferntree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159 at 172, per Dixon, Williams and Webb JJ. As Fullagar J points out in that case at 187, the question of what is concomitant and ancillary is not to be answered merely by looking at all of the activities carried out on the land and characterising them as charitable or as some other sort of activity, e.g. commercial activity. What is important is the relationship of the various activities to each other and the question of whether it can be said that there is a separate and distinct purpose of a non-charitable character.

15 It was submitted by the plaintiff that care must be exercised in looking at cases which determine whether a purpose is a "public benevolent" purpose and that care should likewise be taken not to confuse the legal and popular meanings of the expression "charitable".

16 I accept both of these submissions, but I do not think that they assist the plaintiff. Rather, it seems clear from the discussion in the cases that both the popular meaning of the expression "charitable" and the meaning of the expression "public benevolent" are narrower in compass than the legal meaning of the expression "charitable". In the Ferntree Gully Corporation case, at 174 - 175, Dixon, Williams and Webb JJ considered the effect of the decision of the Privy Council in Chesterman v Federal Commissioner of Taxation [1926] AC 128. Their Honours explained that the Privy Council held that in the absence of an indication to the contrary, the expression "charitable" in the statute there in question "was used in its legal sense and should not be given the narrow meaning of 'eleemosynary' which it has in popular language". The ordinary meaning of the expression was, then considered to be narrower than the legal meaning. Turning to the definition of "eleemosynary", modern dictionaries give it a primary meaning of "charitable" and a secondary meaning, which was clearly that intended by their Honours in the Ferntree Gully Corporation case, of "alms giving".

17 In Perpetual Trustee Co Ltd v Commissioner of Taxation [1931] HCA 20; (1931) 45 CLR 224, at 232, Dixon J said of "benevolent" that it did not merely mean "benign" and that he was unable to place upon the expression "public benevolent institution" a meaning wide enough to include organisations which did not promote the relief of poverty, suffering, distress or misfortune. Such organisations are plainly within the meaning of the expression "charitable" used in a legal sense, although that expression may encompass other purposes also. The distinction was discussed by the Full Court of the Federal Court in Metropolitan Fire Brigades Board v FCT (1990) 97 ALR 335 in terms which also suggest that "benevolent" is similar to, but perhaps narrower in its scope than, "charitable".

18 Although there may be differences of emphasis, consideration of the cases which have referred to the expression "charitable" in its popular sense and to the expression "benevolent", suggest that a finding that a purpose is either charitable in the popular sense or is a public benevolent purpose will almost inevitably mean that such a purpose is also charitable in the legal sense, while a finding that the purpose is charitable in the legal sense will not necessarily entail a finding that it is either charitable in the popular sense or is a public benevolent purpose.

19 So far as purposes directed towards the advancement of Aboriginal people are concerned, purposes of this kind, and institutions directed to the advancement of Aboriginal people, have been considered in a long line of cases. In the case of In re Mathew [1951] VicLawRp 29; [1951] VLR 226, O'Bryan J considered a trust to be used by the trustee "in his discretion for the benefit of the Australian Aborigines". His Honour said, at 232, that:

"Australian Aborigines are notoriously in this community a class which, generally speaking, is in need of protection and assistance".

His Honour referred to legislation which appeared to recognise the special needs of Aboriginal people, and continued that:

"Such a class, in my opinion, is analogous to those mentioned in this statute [43 Eliz 1, E4 (1601), from which the present legal understanding of the expression 'charitable' is derived] as 'the aged, impotent and poor people; support, aid and help of people decayed; education and preferment of orphans'."

His Honour therefore held that as the trust was for the benefit of a class which itself was within the ambit of the statute, it was necessarily a valid charitable trust.

20 Many cases since that decision have also taken judicial notice of the fact that, unfortunately, Aboriginal people have continued to be, as a class, "notoriously in need of protection and assistance". As a class, they are, by the standards of the community as a whole, generally poor, much more likely to be in ill health, and likely to require special provision to be made for their education. Cases of this kind include: Re Bryning [1976] VicRp 8; [1976] VR 100; Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197; Tangentyere Council Incorporated v Commissioner of Taxes [1990] NTSC 14; (1990) 99 FLR 363; Mpweteyerre Aboriginal Corporation v Alice Springs Town Council (1994), unreported SCt of NT (Kearney J) 14 May 1996 and on appeal (1997) 115 NTR 25; MacLean Shire Council v Nungera Co-operative Society Ltd (1995) 86 LGERA 430; Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120; Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48; and Gumbangerrii Aboriginal Corporation v Nambucca Council (1996) 131 FLR 115.

21 In view of the many cases, some of them very recent, in which this issue has been discussed, I do not think it necessary for me to refer either to the readily available statistical information or to the legislative and administrative framework established at both State and Federal Government level, which indicates that the proposition enunciated by O'Bryan J remains true today.

22 However, so that the purposes of the defendant can be better placed in their local context, I note that the report of the taskforce on Aboriginal Social Justice to the Government of Western Australia in April 1994 reported that the health of Aboriginal people is significantly worse than that of non-Aboriginal people, the most obvious indicator of this fact being that an Aboriginal child at birth can expect a life span nearly 20 years shorter than that of a non-Aboriginal child, and that 70 per cent of Aboriginal households are in rented accommodation as compared to 28 per cent of the total population, and that 13 per cent of Aboriginal dwellings are improvised homes such as sheds and tents, whereas improvised homes comprise less than one per cent of all dwellings in the total population.

23 Looking at the "South Hedland" region (an ATSIC classification) of which the defendant is part, the Aboriginal Affairs Planning Authority document "Regional Planning Profiles" of November 1994, notes that the unemployment of Aboriginal people in the region was several times higher than that of non-Aboriginal people and that Aboriginal families of all types had incomes lower than non-Aboriginal families, whether couples with or without children were compared.

24 Counsel for the plaintiff urged that it would be wrong, and even patronising, to assume that all Aboriginal people were in need of protection and advancement. However, to the extent that the proposition extracted from the cases to which I have referred is accepted as a broad generalisation, it seems to me to be no more than a reflection of an unfortunate fact arising from the interaction of many complex factors over a long period of time. It would be consistent with those cases to find that a purpose of advancing some particular group of Aboriginal persons might fall outside the scope of a charity; as I understand it, the defendant conceded this proposition and suggested, for example, that the purpose of advancing well paid Aboriginal football players would at least require close scrutiny. However, no such exception arises here.

25 Accepting that the advancement of Aboriginal people generally is a charitable purpose, it is necessary to consider the objects of the defendant and the purpose for which it uses this Land, in order to determine whether it falls within the scope of that purpose.

26 The Land is close to 3.3 hectares in size. Its zoning is residential and it is located within the town site boundary of the town of Onslow. The plaintiff provides to the Land all the usual services it provides to other residential areas in the town site. Residents of the Land use the facilities available in the Onslow town site. Just under half of the population of Onslow is of Aboriginal descent, and about one quarter of that portion of the population resides in the defendant community.

"(a) to further the advancement and well being of Aboriginal people in Australia generally, and on the Bindibindi Housing Development of Onslow, Western Australia in particular;

(b) to help and encourage its members to keep and renew their traditional culture;

(d) to support education, job training, health services, work and housing for its members;

(e) to encourage its members to manage their own affairs upon their own land;

(f) to encourage and promote sporting, social and recreational activity amongst Aboriginal people;

(g) to participate with other Aboriginal associations in projects for their mutual benefit; and

(h) to receive and spend grants of money from the Government of the Commonwealth or of the State or from other sources."

28 The governing committee of the community must carry out the objects of the association and the funds of the association shall be applied in carrying out those objects only. Upon winding up, any surplus property or moneys are not to be distributed amongst members but are to be transferred or paid to an association with similar objects. Membership of the defendant is open to "those adult Aboriginal persons of and from the area commonly known as the Onslow Aboriginal Reserve and whom the committee decides may be admitted to membership". It appears from the history of the Land that the area known as the Onslow Aboriginal Reserve is, or encompasses, the area used and occupied by the defendant.

29 So far as the objects of the defendant shed light upon the use and occupation of the Land, it appears to me that the majority of the objects are of a charitable nature. Paragraph (a) echoes the terms of the trust the subject of In re Mathew. That seems to me to be the overriding purpose, and it is at least arguable that the remaining paragraphs are the means by which that purpose is to be advanced. I do not think it is necessary to call evidence to demonstrate that poverty, ill health and helplessness are relieved by encouraging maintenance of traditional culture, self help and the development of self management skills to which pars (b)-(e) are directed. So far as par (f) is concerned, this seems to be a purpose expressly deemed by the Charitable Trusts Act 1962 (WA) as charitable in circumstances such as these (s 5).

30 However, there are objects which may be carried out by the defendant which may not necessarily be charitable. Paragraphs (g) and (h), if broadly read, may encompass non-charitable purposes, at least if one does not read them as necessarily subordinate to (a) and as objects to the extent only that they serve the purpose of par (a).

31 Further, to the extent that the objects focus upon members of the defendant (par (b) to par (e)) the question is raised whether there is a sufficient "public" benefit. It appears from the Case Stated that membership of the defendant is potentially open to roughly one quarter of the adult Aboriginal population of that town. The ratio of adults to children in Onslow is not in evidence, but the total population is approximately 850 "persons". (It is not quite clear from the materials whether these are adult persons or all inhabitants). In any event, it seems clear that one quarter of the adult Aboriginal population is a significant number of people and, assuming that the benefits of membership of the defendant are likely to improve the living standards of children of members, the number potentially benefited is clearly sufficiently large to be regarded as a "significant section of the community" and, thus, to give the object of benefiting those people a public character.

32 One aspect of the qualifications for membership detracts from the analysis which I have undertaken so far, however. That is the qualification that membership is open to adult Aboriginals from the relevant area "and whom the committee decides may be admitted to membership". I am inclined to the view that the rules must be read as a whole, and in conjunction with the objects, so that adults who otherwise are qualified for membership could be refused admittance by the committee only if such refusal were necessary for the advancement of Aboriginal people generally, or for the benefit or protection of existing members of the community residing on the Land. Such exclusion might be necessary either in order to prevent too great a strain on limited resources, if the numbers of those seeking membership exceeded those for whom the committee could reasonably provide, or if it were necessary because of the behaviour of the person seeking membership (e.g. if the person had persistently breached accepted standards dealing with wilful damage or disorderly behaviour or alcohol or matters of that kind). It seems to me, however, that it is not necessary finally to determine this question, because, as I have noted earlier, the overriding question is the purpose for which the Land is used and occupied, rather than the objects of the institution occupying it.

33 As to use, there is no evidence to suggest any exclusion or limitation of the benefits of membership which is of an arbitrary nature, or which confines membership to particular private individuals and their families. Indeed, there is nothing in the evidence to suggest that the benefit of residence upon the Land is confined to members of the defendant and their families. Rather, the Case Stated refers at par 7.4(a) to Aboriginal boarders who stay with residents and asserts in par 8.2(b) that accommodation upon the Land is open to all Aboriginal people eligible for membership and that it is generally allocated in the order of application both to members and non-members who are eligible for membership.

34 As in Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25, the evidence suggests that those benefited by the defendant form a significant proportion of the local community and that the benefit therefore is of a sufficiently "public" nature to be considered charitable.

35 Turning to the activities conducted upon the Land, they appear to be exclusively charitable by nature. The following summary is taken from the Case Stated. The Land is used for the provision of low cost rental housing for economically disadvantaged Aboriginal people. The accommodation is rented at rates which appear to be significantly below those charged by Homeswest. Rent is used to pay bills, cover office costs and generally further the objects of the defendant, but not in order to generate profit. Rent arrears are not actively sought from those who owe rent. A number of projects have been undertaken upon the Land in order to improve living conditions and in order to keep people occupied, to stop them drinking too much alcohol, to create self respect and (theoretically) to generate income to further the objects of the defendant. Although the constitution of the defendant requires that profits from projects must be used for furthering the objects of the defendant, the general recollection of the current residents is that none of the businesses undertaken have in fact been profitable.

36 Projects currently in operation include the operation of a kitchen for the benefit of elderly pensioners and for making lunches for children of residents to assist them to stay at school; a playgroup for children living on the Land; a basketball court to be used by children of residents and for competitions between the resident team and other teams; television and video facilities provided for children of residents, with the particular intention of stopping older children from going to hotels and consuming alcohol; and the establishment of a clinic on the Land (although a full-time health worker has not been able to be obtained). In addition, the defendant is currently training eight residents in house repairs and maintenance, two in administrative tasks and two in the community/domestic health area. The trainees receive wages of between $360 and $486 gross per week. It has endeavoured to improve the health of residents, in particular by efforts directed towards cleanliness and hygiene upon the Land generally, and by additional measures which it is unnecessary to outline in detail.

37 In previous times, the defendant has operated a plant nursery for the promotion of the health of the residents of the Land through a diet of fresh vegetables and also for commercial sale of trees and shrubs to the Shire and mining companies, and has operated an arts and crafts programme upon the Land, including the sale of artefacts, paintings and silk screening products. Other businesses include Bindibindi Aboriginal Administrative Services and Bindibindi Aboriginal Repairs and Maintenance, which were intended to run the administration associated with the use of the Land and to carry out repairs and maintenance to dwellings upon it. All of the businesses had the object of training residents upon the Land in skills associated with the particular business.

38 None of those businesses are currently operating, nor do they appear to have been operating during the 1997 year in respect of which I am asked to determine the rateability of the Land. Because argument was directed to the relevance of these businesses, however, I would observe that it seems to me that none of them would have the result of changing the character of the defendant's use and occupation of the Land so that it could no longer be said to be used "exclusively" for charitable purposes. As Fullagar J pointed out in the Ferntree Gully Corporation case (at 187):

"The whole character and atmosphere of the place must be of vital importance."

39 In his judgment, Fullagar J was concerned with the atmosphere of an institution designed to rehabilitate delinquent boys. However, clearly the same observations would apply in relation to attempts within a community such as that administered by the defendant to improve living standards of residents over a long period of time by providing practical training in the skills necessary for self care and for employment and for the generation of self reliance and self respect. The relationship between what may appear to be commercial enterprises and a charitable purpose is a matter of fact in each case, but in the present case activities of the kind which I have described plainly appear to me to be directed towards serving the dominant charitable purposes.

40 In my view the defendant has established that it uses and occupies the Land exclusively for charitable purposes and is exempt from rating on that basis.

41 The question of local government power to impose fees or charges in relation to services such as refuse collection is not an easy one. Both the Health Act 1911 (WA) and the Local Government Act contain numerous provisions which purport to confer power upon a local authority to impose a charge or fee for service. Different means of imposing the fee or charge are prescribed in different sections, and different conditions are imposed in respect of the different means of imposition. Differing provisions are made for the way in which fees or charges may be enforced. There appear to be substantial areas of overlap between the various powers. It is not, to my mind, possible to discern a coherent legislative framework and, in particular, it is impossible to discern the extent to which the various powers are intended to be concurrently exercised.

42 The provision which most directly deals with removal of rubbish is s 112A of the Health Act. It provides that where a local government undertakes for the removal of house and trade refuse and other rubbish, every occupier of premises within the relevant part of the local government area shall pay to the local government the prescribed charge. "Prescribed" is defined in the Health Act to mean "prescribed by this Act or by any regulation or local law thereunder". In addition s 344C provides for a method of fixing fees or charges by resolution in accordance with the procedure set out in that section. Although certain other difficulties in the application of s 112A to the facts of this case were raised in argument, it is sufficient to dispose of any reliance upon that provision to observe that there is conceded by the plaintiff to be no evidence of any relevant regulation or local law, or of any resolution in accordance with s 344C. The rubbish collection charges cannot therefore be sustained pursuant to s 112A.

43 There appears to be a distinction of significance drawn in the Local Government Act between service charges on the one hand, and fees and charges for services on the other. By s 6.15(1)(a) (which falls within Division 5 of Part 6 of the Act) it is provided that local government may receive revenue or income from:

44 Section 6.16 was particularly relied upon by the plaintiff, and it is desirable to set it out in full:

"(1) A local government may impose* and recover a fee or charge for any goods or service it provides or proposes to provide, other than a service for which a service charge is imposed.

(2) A fee or charge may be imposed for the following -

(a) providing the use of, or allowing admission to, any property or facility wholly or partly owned, controlled, managed or maintained by the local government;

(b) supplying a service or carrying out work at the request of a person;

(d) receiving an application for approval, granting an approval, making an inspection and issuing a licence, permit, authorization or certificate;

45 Aspects of the section are puzzling. If subs (1) is read in what appears to be its natural sense, it permits the recovery of a fee or charge for any service. Once that power is conferred, it is difficult to see what purpose is served by subs (2). If subs (2) were read on its own, the list of charges and, in particular, the reference in par (f) to such other service as may be prescribed ("prescribed" meaning for the purposes of the Act "prescribed by regulation") would lead one to the conclusion that only those services listed in subs (2) could be the subject of a fee or charge. There is, if not an inconsistency, at least a tension between the two subsections.

46 The position is further complicated when one realises that "service charges" are separately dealt with in Division 6 of Part 6 of the Act, particularly in Subdivision 2 which is entitled "Categories of Rates and Service Charges". In that Division, s 6.32 relevantly provides that:

"(1) When adopting the annual budget, a local government -

(b) may impose* on rateable land within its district -

It appears that while area rates and minimum payments may only be imposed on rateable land, a service charge may be imposed upon any land, whether rateable or not. While s 6.32 does not impose any conditions on the power to impose a service charge, the subject is further dealt with in s 6.38 in terms which suggest that certain services only may be the subject of a service charge. That section relevantly provides that:

of land within the district...a service charge for a financial year to meet the cost of providing a prescribed service in relation to the land." (emphasis supplied)

47 It appears from this section, and was as I understand it conceded during argument, that a service charge may be imposed pursuant to this Division of the Local Government Act only in respect of a service which has been prescribed by regulation. It was common ground that there was no evidence of any relevant regulation in this case.

48 However, other provisions of this Division are relevant for a reason which will shortly appear. Later subsections of s 6.38 impose conditions upon the way in which local governments may deal with money recovered as a result of the imposition of a service charge. Payment of rates and service charges is dealt with in Subdivision 4 of Division 6. Section 6.43 provides that both rates and service charges are a charge on the land which is rated or in relation to which the service charge is imposed. Section 6.45 provides for the ability of a person liable for the payment of a rate or service charge to make payment by instalments, which may be set forth in the local government annual budget, and allows a local government to impose an additional charge including an amount by way of interest where payment is made by instalments. Section 6.51 permits a local government at the time of imposing a rate or service charge to resolve to impose interest on a rate or service charge remaining unpaid in specified circumstances. Subdivision 5 provides for recovery of unpaid rates and service charges. Section 6.56 permits local governments to recover an unpaid rate or service charge, together with the costs of proceedings for recovery, in a court of competent jurisdiction.

49 I was provided with copies of documents evidencing the imposition of charges in respect of rubbish from the 1994/95 financial years through to the 1997/98 financial year which were incorporated by consent into the Case Stated. The documents for the first two of those financial years of course referred to the Local Government Act 1960. While no argument was addressed to me on the terms of that Act, so far as rubbish collection charges were concerned, it appears from the relevant documents that it was intended that rubbish charges be imposed with respect only to rateable land. The minutes of the meeting of 16 and 17 August 1994 show a motion carried to the effect that:

50 "...the following rates for 1994/95 be adopted:" (emphasis supplied)

51 There then followed four sub-categories, the fourth of which is entitled "Rubbish Charges". So far as 1995/96 was concerned, I was given a document entitled "Memorandum of Imposing Rates", which was signed by the President and Clerk of the Shire and which stated that:

"At a meeting of the Ashburton Shire Council held on 25 and 26 July 1995, it was proposed that the Rates and Charges specified hereunder should be imposed on all rateable property in the district of the Shire of Ashburton...." (emphasis supplied)

There then followed references to general rates, minimum rates, a penalty and again "Rubbish Charges". I think it is sufficient to deal with those years to note that the clear intention of the only documents provided to me was to impose the rates only in respect of rateable land. As I have noted at the outset, the parties confined their argument to the 1995 Act, so I am unable to determine whether the land would have been rateable land for the purposes of the 1960 Act.

52 So far as the 1996/97 and 1997/98 financial years were concerned, the relevant minutes show either separate resolutions or resolutions divided into separate parts (I do not think that the difference is material) as follows. First, there is a resolution to the effect that "the following rates be imposed on all rateable property...." and there are then references to the gross rental value of properties, unimproved value of properties and minimum rates for all properties. The next resolution or division resolves "that the following rubbish charges be imposed for all rubbish collection services for the [relevant] financial year". There then follows a reference to domestic and commercial collections with differing rates imposed for the pick-up of different quantities of rubbish at differing intervals. There then follows in respect of each year a resolution, or division of the resolution, which is expressed to be in accordance with the provisions of s 6.45(1) of the Local Government Act, offering ratepayers "the opportunity to pay rates and rubbish charges in instalments" and then a further resolution expressed to be pursuant to s 6.51 of the Act imposing interest on outstanding "rates and service charges".

53 It is necessary at this point to note that there is in respect of fees or charges referred to in s 6.16, no provision for payment by instalment, for the imposition of interest, or for the collection procedures which are prescribed under the Act in respect of service charges imposed pursuant to Sub Division 2 of Division 6. The Act appears to contemplate two distinct regimes of charges.

54 The effect of the minutes provided to me is that the plaintiff has purported to impose its rubbish collection charges as a service charge pursuant to s 6.38 and the following sections of Division 6. Because of the absence of any relevant regulation permitting the imposition of charges in that way, it lacked the power to do so. In my view, the scheme of the Act does not now permit the plaintiff to assert that the fees could also be supported pursuant to s 6.16. Division 6 contains a set of complex and inter-related provisions, and a fee imposed pursuant to it is an imposition quite distinct from a fee or charge pursuant to s 6.16. Certain safeguards for those upon whom service charges are imposed are provided in Division 6 by means of the requirement that a charge be prescribed by regulation, the provision for payment by instalments, and the objection procedures set out in that Division, while the importance of the charges to the proper running of local authorities is reflected by the fact that the charges are a charge upon that land and may ultimately be recovered by, inter alia, a transfer of the land to either the Crown or the local authority.

55 Although the intention is not expressed in the Act, it appears to me that the legislative scheme contemplates that a service charge will be something akin to a rate, in the sense of a charge imposed by reference to occupation or ownership of land, in respect of a regular or continuing service of some significance provided by the local authority to either all residents or to a considerable proportion of residents, while the fees and charges contemplated by s 6.16 are likely to be of an ad hoc and occasional nature, directed to individuals and payable either before or at the time of provision of the supply of the particular service in question. Although it is not necessary to decide this issue, it is, I think, questionable whether the scheme of the Act is such that s 6.16 can reasonably be read, in its context, as intended to permit a local authority to impose and recover pursuant to s 6.16 a fee for the regular collection of household refuse, which is historically one of the core functions of local government.

56 A further question might arise in this case as to whether, if a fee for rubbish collection could be imposed pursuant to s 6.16, it could be directed to the defendant as the owner of the land, or whether it should appropriately be directed to the individual occupiers of the households which produce the rubbish and from which the rubbish is removed. However, it is not in my view necessary to determine this issue, because of the manner in which the plaintiff has purported to impose these charges.

57 The defence was amended by leave on 15 February 1999 to assert in the further alternative that the land was not rateable pursuant to s 6.26(2)(a)(I) of the Local Government Act 1995 as the land is the property of the Crown and is used or held for a public purpose. Although both parties urged me to determine this issue, in view of the conclusions I have reached concerning the applicability of s 6.26(2)(g), it is not in my view necessary to do so. For the reasons which I have given, the plaintiff's claim fails both in respect of the rates and in respect of the rubbish collection charges.

Councils and Associations Act 1976

Administration Act 1997

Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (127 paragraphs)

Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108 (30 July 1999)

Parties

Legislation Cited (5)

Cases Cited (25)