A summary of sponsorship moneys paid in 1998 and 1999 and letters sent for renewed sponsorship for the year 2001 indicate that each of the letters for the latter period sought contributions including GST. There were some seven letters which had been sent to various law firms.
Financial statements
99 There were a number of financial statements in evidence. They were as follows:
1. Treasurer's report for 8 November 1996 - 30 September 1997.
100 This report disclosed income of $21,658.50 from membership and seminar fees, $33,500 from "Sponsorship Fees" and $834.62 from interest. Expenditure for the period, which was itemised in an attachment, totalled $20,783.95. In addition there were bank charges and duties of $631.96. At the end of the period the association had a balance in its bank account with the Bank of Melbourne of $34,578.18.
2. Treasurer's Report, attached to minutes of annual general meeting, 11 November 1998
101 This report indicated that as at 8 January 2008 VWL had $26,971.20 cash in their bank account. Over that financial year the association received $16,500.00 in "Sponsorship" income, $19,400.00 in "Membership" income, $6,014.44 from seminars and a further $901.41 in interest. The expenditure over the same period was $44,753.72, with an additional $50.00 representing "unpresented cheques". The value of VWL's "total assets" at the end of the reporting period was $25,063.39, expressed to be subject to the possibility of being required to pay income tax.
3. Treasurer's Report, attached to minutes of annual general meeting, 25 November 1999
102 The 1998-99 Treasurer's Report showed the initial bank balance to be $42,291.23, with "Sponsorship", "Membership" and "Seminars" generating income of $32,500.00, $18,360.00 and $19,128.00 respectively. Interest amounted to $594.79, and a further $2,182.12 was received under the heading "Other deposits". Outgoing payments totalled $59,722.22, leaving "total assets" of $55,333.92 as at 30 June 1999. Again, this figure was subject to potential liability for income tax.
4. Treasurer's Report, attached to minutes of annual general meeting, 22 November 2000
103 The 1999-2000 report shows "Cash at bank" as at 1 July 1999 to be $55,333.92. $30,000.00 was received from sponsorship, $19,844.00 from membership fees, $13,915.00 from seminars and $1,001.23 from interest. $955.00 was received as "Other deposits". Total expenditure was $46,984.65. The value of "total assets" was reported at $74,064.50, expressed to be subject both to potential income tax liability and to a GST liability of $757.00 for the period 1 July 2000 to 30 September 2000.
5. Treasurer's Report, attached to minutes of annual general meeting, 28 November 2001
104 This document reports that at the beginning of the 2000-01 financial year VWL had $74,064.50 cash in the bank. The sponsorship income for that year was $35,900.00, membership income $21,980.00 and seminar income $16,710.50. Interest earned was $2,286.90. The report shows $75,743.85 in total outgoing payments, and $75,168.05 in total assets at the end of the financial year. The note about potential tax liability appears again.
6. Treasurer's Report - 2001/2002 Financial Year.
105 The Treasurer's Report for the year ended 30 June 2002 disclosed total income of $66,988.68. This was made up of $7,557.27 from functions, $1,723.23 from interest, $22,708.18 from membership subscriptions and $35,000 from sponsorships. Total expenses were $66,142.41, leaving a net income of $846.27. The largest single item of expenditure was the cost of printing the quarterly magazine Portia, which were $16,605. Surveys conducted by the association cost $12,130.28. Expenses associated with functions put on by the association were $9,185.84.
106 The balance sheet as of 30 June 2002 showed total assets of $81,512.49 and a total "equity" of $54,204.41.
General conclusions about VWL activities from formation to the end of 2001
107 The review of the activities of VWL from 1996 to 2001 set out above was derived from the affidavits of various VWL officer holders and documents exhibited to those affidavits. The affidavits were received subject to objection by the Commissioner. The objections for the most part concerned relevance and form. There were also objections that some material was argumentative. The history of the VWL from its formation up to the end of 2001 has been drawn from evidence which is direct and admissible and is, in any event, uncontentious. So too is the account of its activities and the sponsorship arrangements with the LIV and the various law firms which contributed to its finances.
108 The evidence contained much in the way of material arising from reports, inquiries and articles about the position of women in the legal profession in Victoria and, indeed, in other parts of Australia. In some cases these reports provided an impetus for particular activities of the association. It is not necessary to base any findings on the truth of particular factual claims or conclusions offered in them. Speeches made at VWL functions by prominent figures in the judiciary and the profession were also mentioned in evidence. These, along with the reports and other papers exhibited to the affidavits, evidenced a degree of discourse and debate within the profession about the position of women lawyers. They were evidence of that fact rather than the truth of the particular assertions or conclusions offered. That does not prevent the Court from taking judicial notice of the long-standing and yet to be overcome differences between the position and participation of women and men in the legal profession in Australia in general and Victoria in particular. The question of judicial notice is discussed below.
109 The activities of VWL which have been described in these reasons were broadly in accordance with its objects during the relevant years. There was an ongoing emphasis on creating an awareness in the profession and in government of the barriers to participation and career advancement of women practitioners, finding ways of reducing those barriers and creating opportunities for enhanced participation. These included opportunities to practice law in ways that could be consistent with family commitments without prejudice to career advancement. They also included attempts to persuade law firms to brief women barristers with the same frequency as male barristers and initiatives to encourage the appointment of women to judicial office. Some of the activities of VWL in the relevant years were directed to broader human rights issues and women's welfare generally.
110 A comprehensive summary of the activities of the association for each of the relevant years was set out in tabular form in schedules prepared by the Commissioner which accompanied closing submissions. It is not necessary to reproduce it here. It was derived from, and referred to, the various affidavits and exhibits.
111 The Commissioner submitted that the activities of VWL fell into the following classifications:
. Professional and social networking
. Continuing professional development
. Improvement of entry and advancement opportunities for women lawyers in the legal profession
. Increased awareness of the contribution of women to the practice and development of the law
. Advancement of women's rights/justice
. Participation in law reform and matters of interest to the legal profession
. Other activities not otherwise classified
The position of women in the legal profession 1996-2001
112 VWL made reference in its submissions to the long history of the exclusion of women from participation in the public and economic spheres of society. It pointed to the introduction in Australia of remedial measures such as anti-discrimination and equal opportunity laws. It contended that the adjustment of discriminatory social norms and practices was likely to take some time and that progress towards the full participation of women in the practice of the law would be slow. It submitted that the Court could take judicial notice of the disadvantage of women in society and of women practitioners in the legal profession. This disadvantage may be characterised broadly as a "social fact".
113 Authority for the Court to take judicial notice, without proof, of matters of common knowledge is found in s 144 of the Evidence Act 1995 (Cth). That section provides:
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
114 The High Court in Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394 said (at [17]):
In New South Wales there would appear to be no room for the operation of the common law doctrine of judicial notice, strictly so called, since the enactment of the Evidence Act 1995 (NSW), s 144.
That observation was made in a case in which the question whether s 144 of the New South Wales Act displaced the common law was not before the Court. A majority of the Court of Appeal of New South Wales had taken judicial notice of the fact that banking institutions such as Westpac used standard forms of guarantee. The High Court held that to be erroneous. The error was not defended before the High Court and nothing turned on any difference between the common law and s 144.
115 The relationship between s 144 and the common law was not agitated in these proceedings. I am content to act upon the basis that the section states the applicable law, authorising this Court to take judicial notice of matters of common general knowledge.
116 The Court is invited to take judicial notice of the disadvantage of women practitioners in the legal profession as a matter of "common knowledge … generally" within the meaning of s 144(1)(a). VWL, in its written submissions, identified the social fact for which it contended. The Commissioner was thereby on notice and not unfairly prejudiced were the Court to act upon the submission. The social fact propounded was the historical and persisting disadvantage of women in relation to their participation and career advancement within the legal profession. At that level of generality there was no dispute. I am prepared to take judicial notice of it. It informs a consideration of whether the VWL was "established for community service purposes" or otherwise met the public benefit requirement of the common law understanding of a charitable institution. It is not, however, critical to the characterisation of the association for the purposes of the ITAA. Characterisation depends primarily upon the objects and, to a degree, upon the activities of VWL in the relevant years of income.
The advancement of women and women practitioners as a public benefit
117 The question whether the purpose of an organisation is "beneficial" or of "service" to the community is relevant to characterisation under the applicable provisions of the ITAA. To the extent that the answer requires assessment of social norms or community values, it may sometimes rest upon an uncertain and shifting foundation. Nevertheless such judgments are often required of the courts in a variety of jurisdictions, civil and criminal. In the present case the task is made easier because there are clear statutory indications of community recognition of historical and persisting gender based discrimination and the need to take positive steps to overcome it.
118 The Sex Discrimination Act 1984 (Cth) sets out its objects in s 3, which include the following:
(a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and
(b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and
…
(d) to promote recognition and acceptance within the community of the principle of the equality of men and women.
119 The Act makes specific reference to "family responsibilities" in relation to employees, defined in s 4A(1) as:
In this Act, family responsibilities, in relation to an employee, means responsibilities of the employee to care for or support:
(a) a dependent child of the employee; or
(b) any other immediate family member who is in need of care and support.
120 Section 14 of the Act prohibits discrimination in employment and in particular provides:
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
…
(3A) It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee.
Discrimination on the grounds of sex, marital status, pregnancy or potential pregnancy in the performance of functions or the exercise of powers under Commonwealth law or for the purposes of a Commonwealth program is also prohibited by s 26 of the Act.
121 The Convention, which is scheduled to the Act and to which Australia is a party, includes, in Art 11, a commitment by States Parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women the same rights and, in particular:
(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;
122 Similar legislation exists in the various States. The legislation and the Convention to which Australia is a party can be taken as indicative of a now long standing social norm or community value that attaches public benefit to the removal of barriers to the advancement of women, on an equal basis with men, in all fields of human endeavour, including participation in the professions and in public life.
Charitable institution or community service organisation
123 VWL contended that it was:
(a) an association established for community services not for political or lobbying purposes and not for profit or gain;
(b) a charitable institution; and
(c) a public educational institution.
It is convenient to commence with a consideration of the "charitable institution" exemption and its application in this case.
Charitable institutions
124 The term "charitable institution" used in the ITAA 1936 and the ITAA 1997 is to be understood in its long established technical legal sense. The origin of that technical legal sense appears in the Preamble to the Statute of Charitable Uses Act 1601 (UK) 43 Eliz 1, c 4. Under the Statute commissioners were appointed to supervise the administration of charities and to prevent abuses. The Preamble set out a variety of charitable purposes which, as Dal Pont has pointed out "… could be interpreted to deal with a range of philanthropic activities completely divorced from poor relief": Dal Pont G, Charity Law in Australia and New Zealand (Oxford University Press, 2000) p 47.
125 The concept of charitable purposes was elaborated in a passage, which has literally acquired statutory status, from the judgment of Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 at 583. That case concerned the Income Tax Act 1842 (UK) 5 and 6 Vict. c 35 which provided for special allowances in relation to income tax on rents and profits of lands vested in trustees for charitable purposes so far as they were applied to charitable purposes. Lord Macnaghten said (at 583):
"Charity" in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed, every charity that deserves the name must do either directly or indirectly.
It is accepted that purposes which are "beneficial to the community" must also be "within the spirit and intendment of the preamble to the Statute of Elizabeth".
126 The High Court recently reaffirmed the application of the technical meaning to the word "charity" and its derivatives used in statutes unless a contrary intention is evident. In Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 229 ALR 1, Gleeson CJ, Heydon and Crennan JJ referred, in a footnote, to the technical legal sense of "charitable" as that defined by Lord Macnaghten in Pemsel [1891] AC 531 "by reference to the spirit and intendment of the preamble to the Statute of Charitable Uses Act 1601 (UK)". Their Honours referred also to "… the general rule that, the word "charitable" being a word that has a technical legal meaning, when it is used in a statute it should be understood in its legal sense unless a contrary intention appears". They noted that the general rule has been accepted as the law of Australia at least since the decision of the Privy Council in Chesterman v Federal Commissioner of Taxation (1925) 37 CLR 317. They further said (at [18] fn 6):
The word is commonly used in statutes. It is reasonable to assume that parliamentary counsel, taxpayers, revenue authorities, settlors, testators and others have acted on the faith of an understanding that the general rule applies.
The Full Court of the Federal Court in Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 at [8] accepted, and there was no dispute before it, that the word "charitable" in the relevant provisions of the ITAA 1997 bears its technical legal meaning. It relied upon Bayside 229 ALR 1 for that purpose.
Political purposes limitation
127 Charitable purposes generally do not include political purposes. Dal Pont observes that the limitation is largely a product of 20th century jurisprudence emanating principally from the dictum of Lord Parker in Bowman v Secular Society Ltd [1917] AC 406 at 442:
a trust for the attainment of political objects has always been held invalid, … because the Court has no means of judging whether or not a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.
128 The political purposes limitation is not well defined and is more difficult of application today having regard to the change in social conditions since 1917 and the involvement of legislatures in areas unthought of at that time: see Santow GFK, "Charity in its Political Voice - A Tinkling Cymbal or a Sounding Brass?" (1999) 18 ABR 225. In Public Trustee v Attorney-General (1997) 42 NSWLR 600 at 602, Santow J observed of the High Court decision in Royal North Shore Hospital of Sydney v Attorney-General (NSW) (1938) 60 CLR 396 at 426:
The High Court's formulation suggests that a trust may survive in Australia as charitable where the object is to introduce new law consistent with the way the law is tending.
In his paper in the Australian Bar Review, Santow J also observed that a trust which has an undoubtedly charitable object does not lose its charitable status simply because it also has an object of changing the law or reversing policy (at 248):
The question is always whether that "political object" precludes the trust satisfying the public benefit requirement.
129 In my opinion however, despite argument from the Commissioner based on the "law reform" object in the VWL constitution, this is not a significant element of the association's purposes such as to affect its characterisation.
The nature of the characterisation inquiry
130 The general nature of the inquiries to be undertaken in ascertaining whether an entity is a charitable institution was discussed by Allsop J in Word Investments Ltd 164 FCR 194. His Honour referred to Royal Australian College of Surgeons v Federal Commissioner of Taxation (1943) 68 CLR 436 and the analysis of the judgments in that case by Lockhart J in Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (1990) 23 FCR 82 at 90-93. These authorities demonstrated that the question as to the true nature or character of the entity is to be assessed having regard to its objects, purposes and activities (at [11]). Allsop J formulated the task of characterisation thus (at [14]):
The relevant task, as stated in the Surgeons' Case is to assess the true character or nature of the entity by reference to its objects, purposes and activities. It is an integrated, holistic enquiry directed to whether a body of facts and circumstances satisfies a legal category or conception.
131 Importantly, the Commissioner had submitted to the Full Court that a charitable institution could conduct commercial activities but only as incidental or ancillary to its charitable activities. After referring to relevant authorities, Allsop J observed that the cases did not support the submission. He cited Scottish Burial Reform and Cremation Society Ltd v Glasgow City Corporation [1968] AC 138 and The Incorporated Council of Law Reporting of the State of Queensland v Commissioner of Taxation (1971) 125 CLR 659 and said (at [18]):
… both stand as authority for the proposition that the making of a profit from the conduct of the charitable activity does not necessarily destroy the charitable nature of the purpose exhibited by the activity.
Stone J agreed with Allsop J.
132 The approach taken by the Full Court is consistent with that set out by Kenny J in Commissioner of Taxation v The Triton Foundation (2005) 147 FCR 362. After extensively reviewing the authorities relating to charitable institutions her Honour said (at [20]):
It is also settled law that whether a particular corporate body is a charitable institution depends on the central or essential object of the institution as determined by reference to its constitution and activities … If the main purpose of such a body is charitable, it does not lose its charitable character simply because some of its incidental or concomitant and ancillary objects are non-charitable.
The public benefit requirement
133 For an association to be characterised as a charitable institution it must exist for a public benefit as distinct from the creation of private benefits. The fourth class of charitable trust in Pemsel [1891] AC 531 brings in the public benefit requirement through the words "beneficial to the community". As Kenny J said in The Triton Foundation 147 FCR at [22]:
The public may, however, include a section of the public.
An association may have a public benefit purpose although some of its subsidiary or ancillary functions may benefit particular persons such as members of a profession: Royal Australian College of Surgeons v Federal Commissioner of Taxation (1943) 68 CLR 436 at 447 and other authorities cited in The Triton Foundation 147 FCR at [23].
Whether VWL is a charitable institution - the contentions
134 VWL submitted that it fell within the category of charitable institution as having been established for a purpose "beneficial to the community". It identified the relevant community as:
(a) the public as a whole;
(b) alternatively, the Victorian legal profession;
(c) alternatively, Victorian women in the law.
It submitted that it was not an association that benefited only its members. The only evidence of benefit received by members, as opposed to non-members, was the journal Portia and, on occasion, discounted entry fees to seminars and functions. The real benefit to VWL members was said to derive from their membership of the section of the community to which VWL's purposes were directed.
135 VWL cited examples of judicially enunciated criteria for identifying purposes falling within the spirit and intendment of the Preamble to the Statute of Elizabeth. According to such criteria qualifying purposes are those:
. which "must tend to the improvement of society": Barby v Perpetual Trustee Co Ltd (1937) 58 CLR 316 at 324 (Dixon J);
. "whose fulfilment may reasonably be thought to minister to the safety or happiness or wellbeing or good conscience of the community and which may reasonably be the subject of outlay at the public expense … [and] could fairly be regarded as a possible subject of public responsibility": Re Belcher [1950] VLR 11 at 13 (Fullagar J);
. which to some extent satisfy "an obligation of the community recognised generally in the community": Re Lowin [1965] NSWR 1624 at 1626 (Jacobs J);
. which make "provision of some of the indispensables of a settled community" and are "socially fundamental": Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation (1971) 125 CLR 659 at 669 (Barwick CJ);
. which uplift the moral tone of the community: Re Weaver [1963] VR 257; Re Inman [1965] VR 238 at 242; or
. which raise the standard of life: Re Blyth [1997] 2 Qd 567 at 581 (Thomas J).
136 VWL argued that its dominant and principal purposes were accurately expressed in clauses 3.1 and 3.2 of the constitution. They were directed to the elimination of discrimination (direct, indirect or systemic) and consequent disadvantage on the ground of gender:
(a) in the legal profession in Victoria;
(b) in society through the promotion and securing of legal rights and human rights whether political, civil, social, economic or cultural in nature.
Its purposes were said to advance the purposes of interests of women lawyers in seeking to redress inequality of opportunity and the removal of obstacles and barriers to the full and effective participation by women in the law.
137 VWL submitted that full participation and contribution by women to the practice of law would benefit women in the community generally and their access to the law. Its stated purposes were said to be aptly described as socially fundamental and indispensable in a society which recognises all persons as equals.
138 The social functions of the association (not including those of an educational nature) were characterised as incidental and ancillary to its dominant purposes. They were carried out to further the esprit de corps of its members and to cultivate the eradication of the discrimination sentiment explicitly in its stated purposes. The functions were said to be necessary in the provision of important networking opportunities to advance employment prospects within the profession.
139 In relation to the political purposes question, VWL submitted that it was not formed for the purpose of changing a specific law or laws or government policy. One of its primary activities have been directed to maintaining and educating the community about and enforcing existing laws. The promotion of humanitarian objects and those relating to basic human rights were said to be charitable even though, on occasion, (although not in this case) they might involve or require a change in policy or law. The judgment of Santow J in Public Trustee v Attorney-General (1997) 42 NSWLR 600 was cited and, in particular, his Honour's observation that:
There is a range of activity from direct lobbying of the government, to education of the public on particular issues, in the interests of a climate conducive to political change. The line between an object directed at legitimate educative activity compared to illegitimate political agitation is a blurred one, involving at the margin matters of tone and style.
VWL submitted that, to the extent to which any of its purposes could be regarded as political, they were incidental to its principal objects. The organisation would not be eviscerated if any reference to legislative change were removed from its constituent documents.
140 The mere statement of purpose contained in clause 3.1(d) "to work towards the reform of the laws" was said not to be political. No political outcome was specified nor the reform of any law in a manner or by any means contrary to public policy or contrary to existing laws and government policies.
141 Some reliance was placed on the judgment of Whitford J in Halpin v Seear [1977] Ch Com Rep. That case considered the validity of a trust established in 1926 to promote the equality of women with men in political and economic opportunity. Under the trust payments were to be made to the London Society for Women's Service for so long as it should, in the opinion of the trustee, continue to promote the objects of the trust. Whitford J noted that it was not suggested that the society as such was a charity in the eyes of the law although some of the activities would undoubtedly qualify as charitable. The question before him related to the object of the founder of the trust (at 34):
So the question is whether the dominant or essential object here revealed is a political one, for it stands accepted in argument before me that if the object be a political object and if this be a purpose trust then it must be invalid. I think that it cannot seriously be contended that the object here is essentially a political object. It seems to me quite clear that the dominant or essential object is the achievement of equality albeit in political and economic fields, that the founder in no sense is concerned with any particular political or economic doctrine or cause; she is concerned merely to ensure that within these fields there should be equality of status between women and men.
142 The Commissioner contended that VWL was not a charitable institution. He argued that not all purposes which are beneficial to the public are in fact charitable. A trust of the fourth class in Pemsel [1891] AC 531 must be of direct and general benefit to the public. The mere fact that it is for purposes which may tend to be of general public utility would not be sufficient. He cited Taylor v Taylor (1910) 10 CLR 218 at 237 and Barby v Perpetual Trustee Co Ltd (1937) 58 CLR 316 at 324. He did not dispute that a trust for the promotion of the mental or moral improvement of the community could sometimes fall within the fourth class. The requirement of benefit to the public was said to commonly exclude from the status of charitable institutions organisations such as professional bodies established to help those persons who furnish the organisation's funds. These would usually be members or persons eligible for membership but could also be contributors or sponsors. If the main objects of an institution were the protection and advancement of persons practicing in a particular profession, the institution would not be regarded as charitable because the element of direct public benefit was lacking.
143 The absence of direct public benefit was said to be evident from various of VWL's objects relating to the provision of a meeting ground for women lawyers, their continuing education and development and providing for their entry and advancement within the legal profession. The direct benefit from these and similar objects was said to be private to women lawyers actual or potential as individual members of the public, rather than a public benefit.
144 The Commissioner submitted that on the facts VWL's main objects related to the advancement of women lawyers, including members of VWL, and that those objects did not manifest a charitable purpose. They were not the same as the second class of its objects for the advancement of women generally. The provision for "such other objects as the Association may in general meeting decide" was not limited to "charitable" objects.
145 The Commissioner also contended that since its purpose was to secure a change in the existing law, VWL's object "to work towards the reform of the law" was not charitable. This object was said not to be merely incidental or ancillary to charitable objects. It was another and separate object of substance in its own right.
The character of VWL
146 The characterisation of VWL is to be assessed holistically. In making that assessment the primary focus must fall on its formal objects as stated in its constitution. But they are to be read in light of the history of its formation, together with the activities it has undertaken since its formation.
147 In my opinion, VWL's principal purpose was to remove barriers and increase opportunities for participation by and advancement of women in the legal profession in Victoria. That object was reflected in clause 3.1(c) of its constitution. Some of the other objects in clause 3.1 were incidental to, or in aid of, that object.
148 It was established to overcome a well-known social deficit, namely the substantial under-representation of women in the legal profession, in its upper reaches and in the judiciary. Having regard to the social norms reflected in the Sex Discrimination Act, cognate State legislation and Australia's membership of the Convention for the Elimination of all Forms of Discrimination Against Women, that objective was a purpose "beneficial to the community". It was within the spirit and intendment of the Statute of Elizabeth. The wider purposes of the AWL which were adopted and endorsed by clause 3.2 of the Constitution and also reflected in clause 3.1(f) placed the principal object which I have identified in the context of a larger purpose which is of itself beneficial to the community.
149 The activities of the association, including the social and networking functions, may have benefited its members. They were, however, plainly directed to the larger object and in many cases to a larger audience, the legal profession in Victoria. They were in aid of the principal objective. There was certainly a relentless push by the association for changes to attitudes and practices affecting women within the profession. There were representations and public positions taken from time to time on matters affecting the position of women generally. None of these things translated into a political purpose that would disqualify the organisation from being characterised as a charitable institution.
150 In my opinion the VWL fell within the description of a charitable institution within the meaning of s 23 of the ITAA 1936 and Item 1.1 in s 50-5 of the ITAA 1997.
151 On this basis the appeals of the VWL will succeed. I do not consider that there is any material difference between its activities in the various years of income with which this appeal is concerned that would affect its characterisation as a charitable institution.
Community service association
152 Section 23(g)(v) of the ITAA 1936 exempted from income tax the income of an association that:
Is established for community service purposes (not being political purposes or lobbying purposes).
153 Item 2.1 of s 50-10 of the ITAA 1997 is to like effect. The term "community service purposes" is not defined. The Explanatory Memorandum to the Taxation Laws Amendment Bill (No 2) 1990, which introduced s 23(g)(v), stated:
Among the institutions exempted from income tax under paragraph 23(e) are charitable institutions. However, many organisations that undertake a range of activities for the benefit or welfare of the community are not charitable, and so such bodies as the traditional community service clubs - Apex, Rotary, Lions, Zonta, Quota and the like - have not qualified for exemption.
…
subparagraph 23(g)(v) … will exempt from income tax the income of not-for-profit bodies established for community service purposes. The words "for community service purposes" are not defined but are to be given a wide interpretation. The words are not limited to those purposes beneficial to the community which are also charitable. They extend to a range of altruisticpurposes. The words would extend to promoting, providing or carrying out activities, facilities or projects for the benefit or welfare of the community, or of any members of the community who have particular need of those activities, facilities or projects by reason of their youth, age, infirmity, or disablement, poverty or social or economic circumstances. An exclusion from the exemption will apply to bodies established for political or lobbying purposes.
154 In Douglas v Commissioner of Taxation (1997) 77 FCR 112, Olney J said of s 23(g)(v) (at 118):
The absence of a statutory definition and the very broad ambit of the words "community service" justify resort to the explanatory memorandum to identify more precisely the legislative intention.
His Honour held in that case that the trust deeds of a "Protestant Hall" did not fall within the exemption provided in s 23(g)(v) because it held the title to the relevant land and kept a building on it for use by other organisations but did not carry out any activity for the benefit or welfare of the community.
155 In National Council of Women of Tasmania v Federal Commissioner of Taxation (1998) 38 ATR 1174, the Administrative Appeals Tribunal (the AAT) considered whether the National Council of Women of Tasmania fell within the scope of the exemption. It was an unincorporated association, the objects of which included the advancement of the interests of women and children and humanity in general. It also brought together representatives of other women's organisations including the promotion of their activities and projects directed to community welfare. The AAT held that the Council's predominant purpose was not that of a social club or discussion group. Its political and lobbying activities had been minimal. It played an active role in community service activities and not a passive one.
156 The AAT found that the Council would hold one annual general meeting each year, nine monthly general meetings, ten monthly executive meetings and a number of lunches and seminars. One of the "subtle roles" of the Council was to widen the support network of its affiliated organisations. Delegates and members who attended Council meetings and executive meetings would support the activities of affiliated organisations financially and by doing unpaid work. Council delegates and members assisted by donating and collecting goods for the needy such as baby clothes and by knitting items for the needy during general meetings. Most of the member organisations appeared to qualify as community service organisations.
157 The AAT held that the predominant purpose of the Council's meetings involved the coordination of community service work and the provision of exchange of information for the purpose of facilitating such work. It held the Council to be an association established for community service purposes, not being political or lobbying purposes and so exempt from income tax.
158 In Navy Health Ltd v Deputy Federal Commissioner of Taxation (2007) ATC 4,568, Jessup J considered the characterisation of a non-profit single member company providing private health insurance through a fund. Membership of the fund was limited to serving members of the Australian Defence Forces and cognate classes of person. The company contended that its objects promoted the efficiency of the Australian Defence Forces which benefited the community as a whole so that it would fall within the description of a "charitable institution" for the purpose of an exemption under the Fringe Benefit Tax Assessment Act 1986 (Cth). Alternatively, it submitted that it was a "non profit association" established for community service purposes and thereby attracting a life exemption.
159 The fringe benefit tax exemption provision was based on s 23(g)(v) of the ITAA 1936. Jessup J referred to the Explanatory Memorandum and accepted that it was clear that the words of the exemption were not limited to charitable purposes. He said (at [83]):
Although a composite expression, I consider that the essence of "community service" is that a service is provided to the community, or a section of the community. Here the word "service" is used in the sense of "health, benefit or advantage", particularly "the action of serving, helping or benefiting, conduct tending to the welfare or advantage of another" (OED 2nd Ed).
His Honour held the term "community" to refer not only to the community as a whole but also to any identifiable section of the community. It did not follow that the receipt of a service by any group of persons should be regarded as the receipt of that service by a section of the community.
160 The question of characterisation of the VWL in this respect is not straight forward. It submitted that it provides for the welfare of the community or a section of it. Its purposes included the carrying out of activities and undertaking of projects for women in the law who have a particular need for those projects and activities by reason of their social and economic circumstance, namely their sex.
161 VWL also submitted that it was not involved in the furtherance of political or lobbying purposes. As to the latter it referred to the definition of lobbying in the Oxford English Dictionary:
1. To influence (members of a house of legislature) in the exercise of their legislative functions by frequenting the lobby.
2. To frequent the lobby of a legislative assembly for the purpose of influencing members' votes, to solicit the votes of members.
VWL submitted that "lobbying" in its statutory context bore a narrow political meaning tying proscribed political activity to direct interaction with members of parliament for stated ends and purposes. It is not clear to me that the term "lobbying" is to be construed so narrowly given the width of the concept of political purposes. In my opinion it could extend to representations to government or members of parliament for changes in policy as well as changes in the law.
162 The Commissioner submitted that the concept of "community service" is similar to that of "public benefit" in the law of charitable trusts. It would not follow that receipt of a service by any group of persons should be regarded as the receipt of that service by a section of the community. In the Commissioner's submission "community service" requires the community or a section of the community to benefit by way of receipt of some identifiable help, benefit or advantage bestowed or provided directly by the putative benefactor. Such a requirement is not satisfied, it was submitted, merely because an association's activities or some of them might have a tendency to benefit the community as a whole or a section of it. In this regard the Commissioner relied upon the observation of Jessup J where he found that the community service requirement was not satisfied merely because the operations of the organisation had a tendency to promote the efficiency of the armed forces thereby benefiting the community as a whole.
163 In my opinion the concept of "community service" was intended to pick up a broader range of organisations than those covered by the concept of "charitable institution" and in particular that class of charitable institution falling within the rubric "beneficial to the community". However, an organisation may be beneficial to the community without delivering a "community service" in the sense contemplated by that term as explained in the Explanatory Memorandum. For the reasons I have already expressed, I am of the view that the purposes of VWL are beneficial to the community in the sense necessary to qualify it as a charitable institution. The concept of "community service" does seem to import the notion of the delivery of some practical "help, benefit or advantage" in the sense used by Jessup J. That criterion is not necessarily met by an organisation whose purpose is to change practices and attitudes in such a way as to facilitate the entry and advancement of women within the profession generally.
164 The matter is not without difficulty and it is unnecessary to reach a concluded position on it. It is sufficient unto the day that I have found that VWL is a charitable institution, that it attracts the relevant exemption and that its appeals must therefore be allowed.
Conclusion
165 Having regard to my conclusions about the status of VWL as a charitable institution, it is unnecessary to make any findings in relation to whether certain elements of its receipts were income in the relevant years. The appeals will be allowed. The orders which were suggested by the Commissioner in that event are the orders which I will make in the following terms:
1. The appeal be allowed.
2. The respondent's notice of assessment the subject of the appeal be set aside.
3. There is no order as to the costs of the appeal.
I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.