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.
- 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.
- 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.
- 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.
- The appeal should be allowed.
- I shall hear counsel as to the orders to be made.