2.2 In addition to this core group, the town camper population includes a large floating population of men and women visiting Alice Springs as a regional centre, staying with kinsmen in the town camps and placing a heavy strain on camp facilities, domestic appliances and household budgets with resultant high repairs and maintenance costs on house and camp facilities and reduced family income to meet the attendant costs of housing. 2.3 The inability of many Commonwealth and Northern Territory Government Departments to effectively deliver services and entitlements to town campers exacerbates their situation. For example,

failure to maximise town campers access to training opportunities maintains low levels of skills, high levels of unemployment and low incomes in the camps. Language problems, movement between town and bush and lack of information and experience in the process of application for benefits, all inhibit access to social security entitlements. A consequence is that many town

camp tenants find it difficult to obtain and maintain an income high enough or stable enough to ensure that rentals, electricity, water and other house bills are paid. TANGENTYERE COUNCIL'S HOUSING PROCESS 2.4 Tangentyere Council was primarily

established as a mechanism, not for the construction of physical architectural structures (a task that could be achieved by NTHC or DOHC or any private contractor), but to provide housing services to a client group with quite specific housing needs that existing housing organisations had been unable to meet. 2.5 For these specific needs Tangentyere Council has developed a housing process which seeks to maximise town camper involvement in all stages of their rehousing to the point where Housing Associations and individual tenants may become self-managing. Essential to this process is a range of services, provided by the Council, designed to assist in the resolution of day to day housing problems which, if left untreated, could jeopardise stable house tenancies. 2.6 The incremental housing process, developed by Tangentyere Council, involves: (a) assisting town campers in the negotiation of special purpose leases for their future housing programme; (b) initiating improvements to existing camp areas (including improved camp security, services and ablution facilities) while housing funding is being negotiated; (c) involving town campers in the design and physical layout of their proposed housing development in consultation with the Council's Design Group; (d) constructing houses and using the construction process as an avenue for employment and training of young, unemployed town campers; (e) developing, with the active co-operation of tenants, a landscaped environment around new housing, providing a setting which adds psychological and social support, rather than added stress, to the inhabitants; improving general health and living conditions through, for example, dust suppression; fulfilling lease covenants and providing a major channel of employment and training for chronically unemployed young town campers; (f) providing management assistance to the 16 legally incorporated Housing Associations in fulfilling the legal requirements of their incorporations, the repairs and maintenance of

their housing stock, together with rental collection and tenancy support services to maintain stable tenancies. 2.7 In fulfilling these functions Tangentyere Council is, perhaps, the closest an Aboriginal housing organisation has come to providing housing on a similar basis, with a similar structure and support system to State Housing Authority provision

though here on a smaller scale and tailored to the specific needs of a client group which SHA's have traditionally characterised as 'bad risk' and failed to house successfully." The evidence in the present case does not disclose any material alteration in the work of the council and the circumstances in which it was functioning between the date of the Dixon report and October 1986. Counsel for the respondent did not challenge any of this. 11. The appellant services not only the permanent and transient occupiers of the town camps referred to in the Dixon report, but members of town camps visiting relatives in remote areas and remote Aboriginal communities in Central Australia. The appellant provides a wide range of services including mailing and banking facilities, the installation and maintenance of a reticulated water system to camps and houses, gardening, the erection and maintenance of children's playground facilities, the establishment and maintenance of parks, the collection of rubbish and garbage, the provision of transport, education and advice. The work of the appellant is directed to the benefit of Aboriginal persons or persons of Aboriginal descent. 12. While the authorities do not lay down an all embracing formula as to what is a public benevolent institution, the number and characteristics of the persons benefited by the institution in question can alone be determinative of the question. 13. The evidence in the present case is overwhelming that the permanent and transient residents of the Alice Springs town camps and the relevant remoter communities constitute an appreciable needy class in the Northern Territory community. I, with respect, adopt the statement of Nader J. in Aboriginal Hostels v Darwin CC (1985) 33 NTR 1 at 16: "I would not have regarded authority as necessary for the proposition that: "Australian Aborigines are notoriously in this community a class which, generally speaking, is in need of protection and assistance": Re Matthew [1951] VicLawRp 29; (1951) VLR 226 at 232 and Re Bryning(1975) VR 100. It is true that those cases might well be regarded as lacking in persuasive force in the present circumstances in Darwin by their considerable separation in time and place. As Lush J. said in Re Bryning: "That decision (Matthew) does not lead to the result that Aboriginals are to be classified perpetually as in need of protection and assistance" (p.101). However, any ordinary informed person living in Darwin knows that Aboriginal persons in the Northern Territory are, in general, in considerable need of special consideration and assistance." And I am able to say that in particular, in the light of the evidence in the present case, the 'town campers' of Alice Springs were at the relevant time in considerable need of special consideration and assistance. 14. I have already referred to some findings of the Dixon committee which I adopt. 15. Turning to matters medical, the town camps and bush communities served by the appellant have severe health and hygiene problems. The evidence of Doctor Moodie, which was not challenged, establishes: - that Aboriginal children in town camps suffer a high rate of infection - diarrhoeal disease; skin infections, including scabies; chronic eye disease, including trachoma and other forms of conjunctivitis; meningitis; kidney infections; ear and upper respiratory tract infections; hepatitis and

pneumonia. - that adults have a high rate of communicable diseases such as respiratory tract infections, kidney infections and sexually transmitted diseases; liver, gut and nervous system problems from alcohol, and cardio-vascular disease, diabetes and high blood pressure: that life expectancy is less than 50 years, admission rate to hospital high and general standard of health of residents of town camps is very substantially below that of any Australian population of Caucasian origin and also substantially below that of other Aboriginal groups in Central Australia. - that persons in town camps are poorly housed and that this detrimentally affects their health. - that poor health of town camp occupants is directly related to housing and crowding and increased cross infection rate. - that lack of accessibility to a proper water supply creates or exacerbates infection. - that some occupants have no functioning shower and that infections are higher in those camps without showers than those with; this is similarly so in the case of trachoma and trachoma plus nasal discharge and/or infected ears. - that poor health, poor social and living disruption in town camps in part arises from and/or is exacerbated by contact with what he describes as "Anglo-Australian" culture but what I take him to mean, the broad aspects of western culture. -
that women's health is particularly at risk in town camps; average life expectancy of Aboriginal women in town camps is lower than that of Aboriginal men. - that the Aboriginal population is at special risk, the level of ill health in Aboriginal community far exceeding that of the white Australian population; that the Aboriginal people living in the town camps exhibit a level of ill health exceeding that of Aboriginal people living in urban environments. Not being fully urbanised, the town camp occupants had specific housing needs. The appellant provided a specialised service and employs architects to specifically design houses tailored to those specific needs. 16. The respondent referred me to the discussion by Nader J. of an argument presented to him in Aboriginal Hostels v Darwin CC, supra, at 17,18. Here it was said, the objects of the appellant's activities elected to live in or around town camps in riverbeds or houses which are sub-standard by western standards, and in making that choice had rejected both a fully urban existence and a traditional or tribal existence in the bush; and I was reminded that poverty is relative: Lemm and Others v. Federal Commissioner of Taxation, supra, 410. If they were disadvantaged, it was said, it was by choice. 17. I think there are a number of answers to this submission. As is pointed out by Drakakis-Smith in his learned article: Alice Through The Looking Glass: Marginalisation in Aboriginal Town Camps of Alice Springs", (1980) 12 Environment and Planning 427-448, which is in evidence before me (appellant's court book 4, tab 19), while the occupants of town camps do not share many of the stereo typical characteristics of "the culture of poverty", they are underprivileged compared to the Alice Springs white community and they are in what he calls "a marginalisation cycle". This "marginalisation process" is not caused by the occupants themselves, he concludes, but lies in causes outside the camps and in part the restricted access of many occupants to regular employment and education. The activities of the appellant seek to reverse "the marginalisation process" discussed by Drakakis-Smith in his article. Although written in 1979 the article is relevant to the time under review. 18. The objects of the appellant's activities are fringe dwellers (I do not use that expression in any pejorative sense); they are culturally ambivalent to such a degree that on the one hand they are socially ill-prepared to live a western urban existence, and on the other, to live a traditional or tribal existence in the bush. This is but one reason they need special attention and care. This predicament has been - more or less - the lot of the "town campers" since just after World War II. As such, they have and have had a cultural and social existence discreet from urban and traditional or tribal Aborigines, and they live and have lived in circumstances over which they have no control other than via the appellant. I have already noted that their adult life expectancy is less than urban Aborigines and traditional or tribal Aborigines in the bush; and the argument overlooks the substantial number of children involved. Their increased susceptibility to disease is not by choice any more than the general social disruption and disorder created by the many uninvited intruders into the town camps, among them alcohol and substance abusers, who, the evidence shows, create bedlam, even in dry camps. Their specialist housing needs are unavailable other than through the appellant. By any standards many "town campers" live in squalor. This submission of the respondent cannot be accepted. 19. The respondent, relying upon the judgment of Street C.J. in ACO.S.S., supra, submitted that the appellant, in so far as its activities constituted it an umbrella organisation coordinating housing associations, was not giving sufficiently direct relief to the inhabitants of the town camps. I cannot accept this submission. It is true that not all the housing associations can themselves be demonstrated to be public benevolent institutions, but I see no need to reach any such conclusion. The evidence discloses that the appellant's efforts do directly benefit the inhabitants of the town camps. The evidence discloses that the housing associations are both conduits for welfare dispersed by the appellant and recipients of capital improvements and matters of maintenance which directly and physically benefit the occupants of the town camps. That being so, it is unnecessary for me to discuss ACO.S.S., supra, and Australian Council for Overseas Aid v. Federal Commissioner of Taxation (1980) 49 FLR 278 and the significance of the concession made by counsel at 280. 20. To the extent that the appellant may be said to be engaged in other activities, either political or commercial, those activities may be characterised as incidental to the principal activities. There is no ground for saying that the respondent should not have been satisfied that the wages paid by the appellant were wages paid or payable to persons who were not engaged exclusively in work of public benevolent nature. The appellant does not lose its character as a public benevolent institution because it is in part self-supporting: Borough of Leichhardt v Moran [1904] NSWStRp 55; (1904) 4 SR(NSW) 361; cf. McGarvie Smith Institute v Campbelltown MC (1965) 83 WN (NSW) 191; or that fees and rents are sometimes charged, albeit as is the case here, often not recovered: Lemm and Others v Federal Commissioner of Taxation, supra. 21. The appellant's principal activities have enabled and enable the town campers to have employment, shelter, facilities and amenities required by them but otherwise not available to them. The activities of the appellant generally contribute to town campers' physical and social well-being and improvement. The recipients of the appellant's benefits are underprivileged and invariably in poor circumstances physically, emotionally and financially. The benefits conferred are no less direct than those in Maughan v Federal Commissioner of Taxation, supra. 22. It should also be mentioned that counsel for the respondent submitted that in so far as the activities of the appellant assisted the town camp occupants to retain and observe their non-western customary values, traditions and culture, such activities were not benevolent in the eleemosynary sense, and the argument discussed by Nader J. in Aboriginal Hostels v Darwin CC, supra, at 17, 18 was admixed with the submission. 23. I reject this submission. Helping those who cannot help themselves to retain and observe their customary values, traditions and culture, western or not, is benevolent, at least in the sense that it is for their social and spiritual welfare and the welfare of society as a whole. There is evidence, which I accept, that health is related to culture. It was not suggested that the values, traditions and culture of the town camp occupants were inimicable to society at large. Benevolence in the relevant sense is not confined to practical and material interests and needs: Maughan v Federal Commissioner of Taxation, supra. 24. The rejection of this submission is not based on any unexpressed if inarticulate major premise (to bend Holmes J.'s famous epigram) or a choice between political economies, cf. W. Friedmann (1942) 6 Mod LR 1, 17, Legal Theory 3rd ed (1953), cited in Lloyd Introduction to Jurisprudence (1959) pp 9-13, Sampford, The Disorder of Law, Blackwell (1989) 275, 276, or even the idiosyncratic inference of a judicial mind (to employ Lord Atkin's remark from Fender v St John Mildmay (1938) AC 1, at 12); it is based on matters deeply rooted in the common law, whose origins and tenor lie in the western liberal tradition: Radcliffe, The Law and Its Compass, Faber (1960), viii-x, 93. In this case, involving as it does the relationship (some might say clash) between cultures, it is not inappropriate to venture to explain this, cf. Pelligrini v Trikilis [1989] NTSC 37; (1989) 63 NTR 5, 10; Lochner v New York [1905] USSC 100; (1905) 198 US 45, 76: "General propositions do not decide concrete cases" per Holmes J. 25. Hitherto 'our lady the Common Law', to adopt Pollock's phrase (Pollock-Holmes letters vol II p 165), has been jealous of individual liberty of action and belief. It accommodates and indeed nurtures individuality, independence, particularity, plurality and diversity. These pre-Victorian themes recur over and again in our judge-made law, if not always without controversy, (they are, inter alia, the basis of such diverse areas as the restraint of trade doctrine, Mitchel v Reynolds (1711) 1 p Wms 181 [1711] EngR 38; (24 ER 347), Nordenfelt v Maxim Nordenfelt (1894) AC 565, the law of passing off, Cadbury-Schwepps v Pub Squash Co. (1981) 1 WLR 193 at 200 F, 205 H, and the rule against perpetuities; and they are reflected in the common law's distaste for monopolies and racial discrimination and its scrutiny of combinations: Coke - monopolies are "ever without the law, but never without friends" 3 Inst 182, 4th ed (1670); Cadbury-Schwepps v Pub Squash Co., supra; letter Pollock to Holmes, supra; cf. Bennett and Fisher Ltd v Electricity Trust of SA [1962] HCA 11; (1962) 106 CLR 492 (which I very respectfully suggest may some day come to be reconsidered) and Trebilcock Restraint of Trade, Carswell (1986) pp 7, 13-14; and as to combinations and race relations, see Crofter Hand Woven Harris Tweed Co. Ltd. v Veitch [1941] UKHL 2; (1942) AC 435 at 451; Scala Ballroom (Wolverhampton) Ltd v Ratcliffe [1958] EWCA Civ 4; (1958) 1 WLR 1057; In re Dominion Students Hall Trust (1947) 1 Ch 183). And see too, generally, Radcliffe, The Law and its Compass, supra, at 64-66, 79 and his 1954-55 Presidential address to the Holdsworth Club entitled 'Law and the Democratic State' in The Lawyer and Justice, Sweet and Maxwell (1978), particularly at pp 155, 156 and in Not in Feather Beds, Hamish Hamilton (1968), particularly at pp 56-57. 26. Relevant to the present context is the discussion of these themes by the Mexican poet and essayist Paz: "... traditional societies must be defended, if we wish to preserve diversity ... History has thus far been plural: different visions of humanity, each with a different vision of its past and future. To preserve this diversity is to preserve a plurality of futures, that is to say life itself ... We must cultivate and defend particularity, individuality, and irregularity - life." Convergences Bloomsbury (1987) pp 117, 118. And in the same context it will be remembered that it was the very regularity of the irregularity of passengers at Paddington Railway Station - life

• that enabled Mrs Bunch to recover the value of her Gladstone bag: (1888) 13 App Cas 31 at 59, 60 per Lord Macnaughten.

27. It is further to be observed that the appellant's work in connection with the town camp occupants' customs, traditions and culture is directed in large measure to enabling self-help, a philosophy at once consistent with the common law, the appellant's own constitution and the statutory enactments relating to Aboriginal persons previously referred to.
28. To submit that the measures taken and assistance given by the appellant to the town campers to preserve and observe their non-western customary values, traditions and culture, for example the 'smoking' and temporary abandonment of houses during 'sorry time' following a death in the household, is not benevolent in the relevant sense is untenable. The respondent has not suggested that the appellant uselessly squandered money or that any part of its activities was sham or that its motives were other than altruistic.
29. I conclude that the appellant was at the material time a public benevolent institution. The source of its finances was public benevolence. Both its membership and the objects of its welfare constituted appreciable needy sections of the community and its activities, which accorded with and sought to fulfil the objects of its constitution were of a public benevolent nature. It was controlled by Aboriginal persons, predominantly employed Aboriginal persons and its efforts were directed towards the welfare of Aboriginal persons. The appellant's employees were all engaged in its principal activities or work incidental thereto or work directed to both achieving a measure of self-support and lightening the load on the public purse. They were thus engaged in public benevolent work for the purposes of s.9(c) of the Payroll Tax Act.
30. The appeal should be allowed.
31. I shall hear counsel as to the orders to be made.