Northern Land Council v Commissioner of Taxes [2001] NTSC 115 (21 December 2001)

Northern Land Council v Commissioner of Taxes [2001] NTSC 115

PARTIES:

TITLE OF COURT: JURISDICTION:

FILE NO: DELIVERED: HEARING DATES: JUDGMENT OF: CATCHWORDS:

REPRESENTATION:

Counsel:

Appellant: Respondent:

Solicitors:

Appellant: Respondent:

Judgment category classification: Judgment ID Number:
Number of pages:

NORTHERN LAND COUNCIL

v

COMMISSIONER OF TAXES

SUPREME COURT OF THE NORTHERN TERRITORY

APPEAL FROM LOCAL COURT EXERCISING TERRITORY JURISDICTION

No. LA1 of 2000 (2000/2126) 21 December 2001
30 and 31 August 2001 ANGEL J

Mr J Basten QC with Mr S Glacken Mr J Durack SC with Ms J Kelly

Northern Land Council Clayton Utz

B ang200111 32

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

Northern Land Council v Commissioner of Taxes [2001] NTSC 115 No. LA1 OF 2000 (2000/2126)

BETWEEN:

NORTHERN LAND COUNCIL

Appellant

AND:

COMMISSIONER OF TAXES

Respondent

REASONS FOR JUDGMENT (Delivered 21 December 2001)

1. [1]  On 7 August 1997 the appellant wrote to the respondent advising it that the appellant would not be submitting a payroll tax return for the month of July 1997 on the basis that it was a public benevolent institution and that during the relevant period all wages were paid to persons exclusively engaged in work of a public benevolent nature, that is, it claimed exemption from payroll tax otherwise payable under s 6 Pay–roll Tax Act 1978 (NT) by reason of s 9(a) of that Act.
2. [2]  On 11 August 1997 a delegate of the respondent Commissioner issued a Default Assessment Notice pursuant to s 19(2)(a) of the Act. Pursuant to s 34(1) of the Act on 27 August 1997 the appellant gave the respondent Notice of Objection referred to in its letter of 7 August 1997.

CORAM:

ANGEL J

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3. [3]  The issuing of the default assessment and the making of the objection followed tidings from the respondent Commissioner of Taxes on 29 July 1996 that he was “unable to recognise the Northern Land Council as a public benevolent institution”. On 4 September 1996 the respondent gave reasons in support of his view that the appellant is not a public benevolent institution for the purposes of s 9 of the Act.
4. [4]  Pursuant to s 34(3) of the Act the respondent considered the appellant’s objection and disallowed it, written notice whereof dated 31 December 1999. The present proceedings involves an appeal pursuant to s 35 of the Act against the respondent’s decision. Declaratory relief is also sought in the general jurisdiction of the Court.
5. [5]  Section 9(a) of the Act exempts from liability for payroll tax an employer which is a public benevolent institution where the employer satisfies the Commissioner that the wages for which the exemption is sought are paid during the relevant period to an employee exclusively engaged in work of a public benevolent nature. The present appeal is only concerned with the question whether the appellant Land Council is a public benevolent institution. This question can be decided in response to the declaratory relief sought by the appellant pursuant to the Court’s general jurisdiction rather than in the appeal under the Act: see Commissioner of Taxes v Tangentyere Council Inc (1992) 107 FLR 470. If the appellant succeeds in obtaining its principal relief, namely, a declaration that at the time of the assessment it was a public benevolent institution for the purposes of s 9(a)

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of the Act, the parties are agreed that it is appropriate that the appeal to be adjourned to permit the Commissioner to consider further representations in regard to the second limb of s 9(a).

[6] Whether the appellant Land Council is a public benevolent institution for the purposes of s 9(a) of the Act is a jurisdictional fact upon which the exemption in s 9(a) depends, cf Commissioner of Taxes v Tangentyere Council Inc, supra, and as such is a fact to be determined, not on the basis of the material before the Commissioner at the time of the assessment, but on the evidence before the Court, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 151, cf Ngurratjuta Pmara Ntjara Aboriginal Corporation v Commissioner of Taxes (No 1) (2000) 155 FLR 146. The Land Council contends that the relevant facts in the present case are admitted by the Commissioner, Perpetual Trustee Co v Federal Commissioner of Taxation (1931) 45 CLR 224 at 232 and 234. To the extent that they are not, it is said they are capable of being known from the statutory charter of the Land Council and the notorious plight of Aboriginal people in the Northern Territory. These are matters on which the Court can inform itself from public or authoritative sources, Gerhardy v Brown (1985) 159 CLR 70 at 142–143; see also Aboriginal Hostels v Darwin City Council (1985) 75 FLR 197 at 211, applied in Tangentyere Council Inc v Commissioner of Taxes (1990) 99 FLR 363 at 369–370, Toomelah Co–operative v Moree Plains Shire Council (1996) 90 LGERA 48, and Alice Springs Town Council v Mpwetyerre Aboriginal

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Corporation (1997) 115 NTR 25 at 39) of the type put forward by the Land Council in the appeal, and to the extent it is necessary, cf Alice Springs Town Council v Mpwetyerre Aboriginal Corporation (1997) 115 NTR 25 at 39–40, from the affidavit evidence of Professor Jon Altman and Mr John Roberts.

7. [7]  The Land Council was established under s 21(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”) on
   14 January 1997 and its functions and powers are governed by that Act.
   The area for which it is responsible is, generally speaking, the northern half of the Northern Territory. The boundaries of the area are depicted in its annual reports. [Exhibits JR–9 to JR–23]) and the Aboriginal population in that area is about 29,000. It is one of four land councils established under the Land Rights Act, the other three being the Central Land Council (responsible for the southern half of the Northern Territory), the Tiwi Land Council (responsible for Bathurst and Melville Islands), and the Anandilyakwa Land Council (responsible for Groote Eylandt and Bickerton Island), see generally, House of Representatives Standing Committee on Aboriginal Affairs and Torres Strait Island Affairs, Unlocking the Future, August 1999, par 2.10 (“HRATSIC Report”).
8. [8]  The Land Rights Act was enacted to implement the recommendations of Justice Woodward in his Second Report of April 1974 and the policy of the Whitlam and Fraser Governments to confer land rights on Aboriginal people as a means of correcting past injustices, see Aboriginal Land Rights

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Commission, Second Report, April 1974, Second Reading speeches on Aboriginal Land (Northern Territory) Bill 1975 and Aboriginal Land Rights (Northern Territory) Bill 1976, Parliamentary Debates, House of Representatives, 16 October 1975, 2222–2225, 4 June 1976, 3081–3084 and 17 November 1976, 2778–2781, and Ministerial Statement, 1 December 1976, 3044. The terms of reference were for Justice Woodward to inquire into:

The appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to land, and to satisfy in other ways the reasonable aspirations of the Aborigines to rights in or in relation to land. (Second Report, p 183)

9. [9]  In his report Justice Woodward stated that the aims underlying the recognition of land rights for Aborigines included: “the doing of simple justice to a people who have been deprived of their land without their consent and without compensation”; the promotion of social harmony; the provision of land “as a first essential for people who are economically depressed”; and where possible the preservation “of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs”. For the reaffirmation of these aims, see HRATSIC Report, pars 1.25–1.34.
10. [10]  The recommendations made by Justice Woodward and the implementation of those recommendations by the legislation were designed to give statutory recognition to Aboriginal traditional law relating to land, which at that time the common law did not recognise, Milirrpum v Nabalco (1971) 17 FLR 141

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cf Mabo v Queensland [No 2] (1992) 175 CLR 1. Thus, the long title of the Land Rights Act is:

An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes.

[11] The Land Rights Act provides for the restoration of traditional Aboriginal land of two classes. The first class comprises the former Aboriginal Reserves in the Northern Territory described in Schedule 1, Land Rights Act s 10. Land so reserved under the Social Welfare Ordinance 1964 (NT), and the earlier legislation, was dedicated for the “use and benefit’ of the Aboriginal people concerned so as to ensure that the land “should be used solely by Aborigines”: see Report from the Select Committee on Grievances of Yirrkala Aborigines, House of Representatives 1962–1963, pars 25–28, and Ministerial Statement, 9 April 1963, Parliamentary Debates, House of Representatives at 481. See also Aboriginal Land Rights Commission, First Report (1973) par 66 and Kruger v Commonwealth (1990) 190 CLR 1 at 75–76, 97 and 158.) The second class comprises unalienated Crown land in the Northern Territory where it is established that there are traditional Aboriginal owners of that land: Land Rights Act, ss 11 and 50(1)(a), and definitions of “traditional Aboriginal owners” and “Aboriginal tradition” in s 3(1). As Brennan J said in R v Toohey; ex parte Meneling Station (1982) 158 CLR 327 at 358, the Act recognises that “Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights”.

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12. [12]  In providing for the restoration of traditional Aboriginal land the Land Rights Act seeks to address and rectify the wrongful dispossession of traditional Aboriginal owners from their lands, cf Mabo v Queensland [No 2] (1992) CLR 1 at 29 and 108–109 and to ameliorate the harmful social consequences that flow from that dispossession, cf Aboriginal Hostels v Darwin City Council (1985) 75 FLR 197 at 211–212.
13. [13]  As at December 1998, 42.1% (566 600 km2) of the Northern Territory had been granted to its traditional Aboriginal owners, with claims for a further 11.35% (152 400 km2) then under process, see HRATSIC Report, par 2 –8.
14. [14]  As already noted, the Land Council is constituted under s 21(1) of the Land Rights Act by the Minister responsible for that Act, and by s 22 is a body corporate with perpetual succession. The Northern and Central Land Councils had first been established in response to the First Report (par 260) of Justice Woodward, who in his Second Report recommended that they be incorporated and given the responsibilities identified in that report under the proposed legislation.
15. [15]  The membership of the Land Council is drawn from Aboriginal people
    living in the area for which the Land Council is responsible and are chosen by those Aboriginal people, Land Rights Act, s 29(1). The Chairperson and Deputy Chairperson of the Land Council are appointed from and by the members of the Land Council, Land Rights Act, s 30. Elections are held every three years and members are elected from the seven regions in the area

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of the Land Council, Northern Land Council, Annual Reports 1998–1999 (p 7) and 1999–2000 (p 8). The Land Council may delegate certain powers given to it by the Act to staff of the Council or to committees of members appointed by the Land Council, Land Rights Act, ss 28 and 29A. The power of delegation has been used for Regional Councils or Committees as part of a process of localisation or regionalisation of decision–making, Northern Land Council, Annual Reports 1998–1999 (p 11) and 1999–2000 (pp 8 and 18).

16. [16]  The functions of the Land Council are specified in s 23(1) of the Land Rights Act. They are directed to benefiting the Aboriginal community in the Northern Territory generally, and the traditional Aboriginal owners of Aboriginal land in the Northern Territory in particular.
17. [17]  The underlying objects of the Land Council are to assist in the restoration and management of land for the benefit of Aboriginal people living in its area of responsibility, including both the traditional Aboriginal owners of and other Aboriginals concerned in Aboriginal land. The functions of the Land Council are directed to those underlying objects in two principal ways. First, by assisting in the making of traditional land claim (Land Rights Act, s 23(1)(a) and (f), and secondly, by supervising Land Trusts as the holders of title in Aboriginal land to perform their powers for the benefit of the Aboriginals concerned, Land Rights Act, ss 5 and 23(1)(b), (c), (e), (ea), (fa) and (h), and Part IV.

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18. [18]  In carrying out its functions the Land Council must have regard to the interests of, and consult and act in accordance with the wishes of Aboriginal people interested in the land who may be affected by the performance of its functions, Land Rights Act, s 23(3).
19. [19]  Section 23(1) Land Rights Act confers on the Land Council the following functions:
    1. (a)  To ascertain and express the wishes and the opinion of Aboriginal people living in the area of the Land Council on the management of Aboriginal land and appropriate legislation concerning that land, Land Rights Act, s 23(1)(a), cf Toomelah Co–operative v Moree Plains Shire Council (1996) 90 LGERA 48 at 57–58 and Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120 at 125–126. On the distinction between political activity to change policy that is not a charitable object, and law reform activity to give effect to existing policy that is a charitable object, see Public Trustee v Attorney–General (NSW)(1997) 42 NSWLR 600 at 621.
    2. (b)  To protect the interests of traditional Aboriginal owners and other Aboriginals interested in Aboriginal land, Land Rights Act, s 23(1)(b), cf Maclean Shire Council v Nungera Co–operative Society (1995) 86 LGERA 430 at 433.

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(c) To assist in the protection of sacred sites, whether or not on Aboriginal land, Land Rights Act, s 23(1)(ba).

4. (d)  To consult with traditional Aboriginal owners and other Aboriginal people interested in Aboriginal land with respect to any proposal relating to the use of that land and to negotiate agreements for the use of such land, Land Rights Act,
   s 23(1)(c), (e), (ea) and (fa), see also Part IV on the granting of mining interests and s 23(1)(d) for the acquisition of interests in land the subject of a deed of grant held in escrow.
5. (e)  To assist Aboriginal people claiming to have a traditional land claim, in particular, by arranging for legal assistance for such a claim at the expense of the Land Council, Land Rights Act,
   s 23(1)(f), cf Legal Aid Commission of Victoria v Commissioner of Pay–roll Tax (1992) 92 ATC 2053 at 2059 and Toomelah Co–operative v Moree Plains Shire Council (1996) 90 LGERA 48 at 59.

The Land Council also has functions to maintain registers recording the names of its members, the members of Land Trusts and of traditional Aboriginal owners, Land Rights Act, ss 22 23(1)(g) and 24. It also has a specific duty to attempt the conciliation of disput es between Aboriginal people, Land Trusts, Aboriginal Councils and Incorporated Aboriginal Associations, Land Rights Act, s 25.

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20. [20]  The functions of land councils and of land trusts are structured under the Land Rights Act in such a way as to ensure that traditional Aboriginal owners of land, and other Aboriginal people with an interest in such land, make decisions about the use of that land. This gives effect to the principle of self reliance, which was considered by a Parliamentary Committee to be “important for the future economic and social development” of Aboriginal people, HRATSIC Report, pars 1.27–1.28, 3.4–3.6 and 3.77 and cf Tangentyere Council Inc v Commissioner of Taxes (1990) 99 FLR 363 at 373.
21. [21]  With the approval of the Minister the Land Council may perform other functions conferred on it by laws of the Northern Territory, including functions in relation to the protection of sacred sites, access to Aboriginal land and schemes for the management of wildlife on Aboriginal land. See Land Rights Act, s 23(2) cf Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120 at 126–127. The functions so conferred concern the management and use of land, for the assistance and protection of Aboriginal people. See instrument of appr oval from the Minister for Aboriginal and Torres Straight Islander Affairs dated 11 May 2000 [Exhibit JR–2} specifying the laws of the Northern Territory to be: Aboriginal Land Act, Coburg Peninsula Aboriginal Land, Sanctuary and Marine Park Act, Lands and Mining Tribunal Act, Mining Act, Nitmiluk (Katherine Gorge) National Park Act, Northern Territory Aboriginal Sacred

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22. [22]  The Land Council has been recognised as a representative Aboriginal and Torres Strait Island Body under Part 11 of the Native Title Act 1993 (Cth) (“the NTA”). As a representative body it has the functions and powers conferred under Division 3 of Part 11 of the NTA, which include: the facilitation and assistance of native title claims, NTA, S 203BB, the certification of native title claims and the registration of indigenous land use agreements; NTA, s 203BE, the resolution of disputes about native title, NTA, s 203BF, the giving of notice to persons who hold or claim to hold native title or matters affecting their interests, NTA, S 203BG, and the entering into of indigenous land use agreements, NTA, S 203BH.
23. [23]  I agree with the submission that the underlying objects of the functions conferred on the Land Council under the NTA concern the restoration of land to dispossessed Aboriginal people, and once restored, the management of that land in the area for which the Land Council acts as a representative body, that is, the northern half of the Northern Territory. This accords with the area of its responsibility under the Land Rights Act.
24. [24]  The functions of the Land Council as a representative body under the NTA are structured in such a way to ensure that Aboriginal people who have or

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25. [25]  The annual reports of the Land Council detail its activities carried out in accordance with its statutory functions. As is apparent from those reports, the activities of the Land Council are directed to the underlying objects of the Land Rights Act, that is, by assisting in the restoration and management of land for the benefit of Aboriginal people.
26. [26]  Insofar as the activities of the Land Council involves the representation of Aboriginal interests in policy development through law reform, cf Public Trustee v Attorney General (NSW) (1997) 42 NSWLR 600, those activities are directed to the function conferred by s 23(1)(a) Land Rights Act that the Land Council ascertain and express the wishes and the opinion of Aboriginal people living in the area of the Land Council “as to the management of Aboriginal land in that area and as to appropriate legislation concerning that

land”. That function is incidental to the principal functions of the restoration of Aboriginal land and the management of Aboriginal land.

[27] The Land Council is financed from the Aboriginal Benefit Reserve, formerly known as the Aboriginal Benefit Trust Account, established by s 62 of the Land Rights Act. It replaces the Aborigines Benefits Trust Fund
established by s 21 of the Northern Territory (Administration) Act 1910 (Cth), from which the Minister was empowered to expend monies for the benefit of Aborigines in general, a particular class of Aborigines or a

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particular Aboriginal. Section 21 was introduced by the Northern Territory (Administration) Act 1952 (Cth). It provided for the appropriation by the Fund of amounts received by the Commonwealth under the Mining Act 1939 (NT), as amended in 1952, as royalties for mining on Aboriginal Reserves, which were fixed at 2.5%, that is, twice the normal rate: Parliamentary Debates, House of Representatives, 6 August 1952 (44 –47), 9 October 1952 (2850–2852), 28 March 1963 (134) and 9 April 1963 (481 –484). By s 62A of the Land Rights Act monies standing to the credit of the Fund were transferred to the Aboriginals Benefit Trust Account. The Reserve is a statutory fund and a component of the Reserved Money Fund. It is subject to separate reporting requirements under the Financial Management and Accountability Act 1997 (Cth). See, for example, Aboriginal Benefit Reserve, Annual Report 1999–2000 where details are given of the s 64(1) payments to land councils (p4), s 64(3) payments (p5) and the s 64(4)–(5) & (7) discretionary payments including grants for the benefit of Aboriginal people.

[28] Payments into the Reserve are made, firstly out of the Consolidated Revenue of the Commonwealth pursuant to standing appropriations, Land Rights Act
s 63(2) and secondly, in respect of mining operations on Aboriginal land conducted by or on behalf of the Commonwealth, the Northern Te rritory or a government authority, the equivalent of royalties payable for those operations, Land Rights Act, s 63(4)–(5). These payments are known as “mining royalty equivalents” or “MREs”.

29. [29]  The following payments are made out of the Reserve to the land councils:
    1. (1)  Amounts equal to 40% of the amounts paid into the Reserve for mining royalty equivalents, Land Rights Act, s 64(1)–(2).
    2. (2)  Amounts equal to 30% of the amounts paid into the Reserve for mining royalty equivalents for mining carried out on Aboriginal land within the area of the relevant land council, Land Rights Act, s 64(3).
    3. (3)  Such other amounts as the Minister may direct for the benefit of Aboriginal people living in the Northern Territory (which may be by way of a loan) or amounts to meet the expenses of administering the Reserve or the administrative costs of land councils, Land Rights Act, s 64(4)–(7).
30. [30]  Since 1991, distribution of the mining royalty equivalents have been made from the Reserve to the four land councils in the following proportions of:Northern Land Council (22%); Central Land Council (15%); Tiwi Land Council (2%); Anindilykwa Land Council (1%).
31. [31]  The payments received by the Land Council from the Reserve are to be applied in the following manner:

 First, in respect of the proportion it receives of the 40% of the amounts for mining royalty equivalents in payment of its administrative costs, Land Rights Act, ss 34 and 35(1).

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•   Secondly, the balance, if any, of that sum is to be paid to Aboriginal Councils, Incorporated Aboriginal Associations, and other eligible Aboriginal Associations in the area of the Land Council
•   Thirdly, in respect of the money it receives from the Reserve for mining royalty equivalents, to Aboriginal Councils and Incorporated Aboriginal Associations in the areas affected by the mining operations.

32. [32]  In addition to funds received from the Reserve, the Land Co uncil receives payment for mining agreements under Part IV that must be applied in accordance with such an agreement, or if the agreement makes no relevant provision, to Aboriginal Councils and Incorporated Aboriginal Associations in the area affected by the mining operations, Land Rights Act, s 35(3).The Land Council also receives money for the use of Aboriginal land or for the granting of interests (other than mining interests) in Aboriginal land, Land Rights Act, ss 15–16, 19–20 and 35(4). Those amounts are to be paid to or for the benefit of the traditional Aboriginal owners of the relevant land, Land Rights Act, s 35(4).
33. [33]  Once the Land Council makes a determination on the distribution of payments to be made by it, as outlined above, the amount of money held by the Land Council is held on trust for those purposes, Land Rights Act,
    s 35(7)–(9). The Land Council is accountable for the monies received and

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34. [34]  The audited financial statements of the Land Council account for the receipt and expenditure of payments from the Reserve for mining royalty
    equivalents applied to its administrative costs, the receipt and distribution of money from the Reserve, and payments under the Land Rights Act for the use of Aboriginal land. Those financial statements also account for special purpose grants and income and their expenditure. including grants received by it as a representative body under the NTA.
35. [35]  The role of the Commonwealth Minister responsible for the administration of the Land Rights Act is limited and defined by the Act, cf Metropolitan Fire Brigades Board v Commissioner of Taxation (1990) 27 FCR 279 at 280 and Mines Rescue Board (NSW) v Commissioner of Taxation (2000) 101

FCR 91. for:





The Land Rights Act confers on the responsible Minister powers

Consenting to certain uses of Aboriginal land, see cf Land Rights Act, 12C, 15(1), 18(4)(c), 18A(2), 18B(2), 19(7) and 68(3)

The initial establishment of land councils, the approval of functions to be carried out by land councils under laws of the Northern Territory, approval of expenditure and receipts by a land trust exceeding $100,000, and the approval of estimates of

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•   Establishing land trusts and appointing their membership on nomination from land councils, Land Rights Act, 4 and 7
•   Making recommendations for grants of Aboriginal land under the Act either in respect of the Schedule 1 lands or in response to recommendations of the Aboriginal Land Commissioner. (Land Rights Act, ss 10–11)
•   Giving consents and approvals under Part IV of the Land Rights Act for exploration and mining activities.The Minister has other functions and powers in relation to the appointment of the Aboriginal Land Commissioner, the appointment of a Chair to the Reserve Advisory Committee, other members being ele cted by the land councils, and approval of discretionary payments out of the Reserve, although the latter has been delegated to officers of ATSIC.

[36] Subject to a few exceptions, the Minister has no power to give directions to the Land Council on the exercise of its functions, Mines Rescue Board (NSW) v Commissioner of Taxation (2000) 101 FCR 91. Those exceptions relate to cases where a land council or land trust may refuse to comply with obligations assumed by them in agreements for the use of Aboriginal land, Land Rights Act, ss 22 12C, 19(9A)–(9B) and 20(5). The Minister has no

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37. [37]  The Land Rights Act confers on the Land Council a funding and co–ordinating role in respect of Aboriginal Councils, Incorporated Aboriginal Associations and other eligible Aboriginal Associations, cfAustralian Council for Overseas Aid v Commissioner of Taxation (1980) 49 FLR 278 at 281–282. The Land Rights Act establishes a system whereby these organisations are the conduit for welfare dispensed by the Land Council, cf Tangentyere Council Inc v Commissioner of Taxes (1990) 99 FLR 363 at 371, Alice Springs Town Council v Mpwetyerre Aborigin al Corporation (1997) 115 NTR 25 at 36–37 and Ngurratjuta Pmara Ntjarra Aboriginal Corporation v Commissioner of Taxes [No 2] (2000) 155 FLR 196 at 197. See also Gumbangerrii Aboriginal Corporations v Nambucca Council (1996) 131 FLR 115 at 118–1109.
38. [38]  The Aboriginal Councils and Associations Act 1976 (Cth) makes provision for Aboriginal Councils and Incorporated Aboriginal Associations (referred to collectively in that Act as Aboriginal Corporations) to be publicly accountable. An Incorporated Aboriginal Association may be formed for any lawful object, including the pursuit of profit for its members, Aboriginal Councils and Associations Act, ss 3 (definition of Aboriginal Association) 43(2) and 44, but both the objects of an Incorporated Aboriginal Asso ciation and the functions of an Aboriginal Council must be approved by the Registrar of Aboriginal Corporations or the Minister responsible for the Act

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ss 16–17 and 43(2)(b). Available evidence suggests that the rules of most Incorporated Aboriginal Associations preclude payments to individual members: see HRATSIC Report, par 5.75.

39. [39]  The functions of an Aboriginal Council will include the provision of services relating to housing, health, infrastructure services, education or training, relief for the unemployed and welfare, Aboriginal Councils and Associations Act s 11(2)–(3). An Aboriginal Council is to be established after the Registrar has considered the needs and resources of the Aboriginals living in the area of the proposed Council and the absence of local government in that area that might otherwise be expected to provide like services, Aboriginal Councils and Associations Act s 16(1), and see the exemption from pay–roll tax given to local government bodies by s 9(d) of the Pay–roll Tax Act.
40. [40]  As a recent Parliamentary Inquiry observed “the bulk of areas affected money [received by these associations from Land Councils] is allocated for community development activities and infrastructure improvements for the benefit of all residents living in the areas affected”, see HRATSIC Report, par 5.75.
41. [41]  The appellant submitted that Courts have consistently found organisations like Aboriginal Councils and Incorporated Aboriginal Associations to be public benevolent institutions. This being so, it was submitted that in so

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42. [42]  The appellant submitted that the assistance that the appellant Land Council provides for the restoration and management of land for the benefit of Aboriginal people is designed to overcome or reduce the disadvantaged position of Aboriginal people in the Northern Territory that has occurred from dispossession and that the restoration of traditional land and restoration and promotion of cultural and spiritual integrity is itself a benevolent purpose. It was submitted that the restoration of traditional land provides and has provided a means by which the socio –economic position of Aboriginal people may be improved through the provision of health, education, training, infrastructure and welfare services by incorporated Aboriginal Associations and Aboriginal Councils which would not be possible without the work of the appellant Land Council, see Tangentyere Council Inc v Commissioner of Taxes (1990) 99 FLR 363 at 371–373; Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1 at 18–19; 115 NTR 25 at 36–37 and 40 and Ngurratjuta Pmara Ntjarra Aboriginal Corporation v Commissioner of Taxes [No 2] (2000) 155 FLR 196 at pars 1 and 12.
43. [43]  Pursuant to a Notice to Admit the respondent Commissioner concedes: 21

1. (1)  that Aboriginal people in the Northern Territory are in a disadvantaged position and in need of protection and assistance
2. (2)  that the principal operations and activities of the appellant Land Council are conducted for the benefit of Aboriginal people in the Northern Territory
3. (3)  that Aboriginal people in the Northern Territory are an appreciable section of the community.

[44] These admissions are properly made. In deciding whether an association that had as its principal object the provision of hostel accommodation for Aboriginal people was a public benevolent institution or a public charity, Nader J in Aboriginal Hostels v Darwin City Council (1985) 75 FLR 197 at 211 observed:

“ ... 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. There are several statutes both local and Commonwealth the purposes of which are to relieve the condition of Aboriginal persons and which give implicit recognition to its existence. I recognise that there is much debate as to the best ways to go about assisting Aboriginal persons. Some people are quite strongly opposed to particular methods adopted, such as the granting of land rights. But, I think that no right thinking person could quarrel with the general proposition that Aboriginals are in need of special consideration and assistance.”

His Honour, at 212, went on to say:

“The fact that some Aboriginal people in Northern Australia are on an equal footing with non–Aboriginals so as not to benefit from or need the hostel accommodation provided by the company does not

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[45] The statement of Nader J has been approved by many Courts when deciding whether an institution that has as its objects work for the benefit of Aboriginal people is a public charity or a public benevolent institution,Tangentyere Council Inc v Commissioner of Taxes (1990) 99 FLR 363 at 369–370, Toomelah Co–Op v Moree Plains Shire Council (1996) 90 LGERA 48 at 53–54, Gumbangerrii Aboriginal Corporation v Nambucca Council(1996) 131 FLR 115 at 121, and Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1 at 13–15, on appeal Alice Springs Town Council v Mpwetyerre Aboriginal Corporation (1997) 115 NTR 25 at 39. See also the New South Wales Court of Appeal in Maclean Shire Council v Nungera Co–Op Society (1995) 86 LGERA 430 at 434 per Handley JA that “the current disadvantaged position in Australia of Aboriginals is such that any valid charitable trust for their benefit must also be for public benevolent purposes”.

[46] In Tangentyere Council v Commissioner of Taxes (1990) 99 FLR 363 at 364 I endeavoured to state the law correctly by saying:

“Taxation exemptions have for many years been extended to public benevolent institutions. A substantial body of case law has evolved around that collocation of words but that case law has not, as I apprehend, absolutely defined the expression. It is true that Street CJ in Australian Council of Social Services Inc v Commissioner of Payroll Tax (NSW) (1985) 1 NSWLR 567 at 568, said: “Those words do have an established scope”, but it is not a term of art and is to be understood in its ordinary English usage (which has no fixed

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In Perpetual Trustee Co Ltd, Dixon J, having said ‘benevolent’ was not to be given its general descriptive meaning, and did not merely mean ‘ benign’, went on to say 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. Starke J in the same case (at 232) said that the expression means an institution ‘organised for the relief of poverty, sickness, destitution or helplessness” (my emphasis). And Evatt J said in the same case (at 235):

“Public benevolent bodies vary greatly in scope and character but give relief freely to those in need of it and unable to care for themselves” (my emphasis).

By “freely” it appears his Honour meant willingly but not necessarily without fees. And in Lemm v Commissioner of Taxation (Cth) (1942) 66 CLR 399 at 411, Williams J (with whom Rich and McTiernan JJ concurred) said:

“relief of pain and suffering, physical disability, infirmity, or financial distress. These are benevolent objects within the meaning of the subsection ...”

and went on to speak of –

“homes, hospitals and institutions organised to render services of a permanent eleemosynary character to appreciable deserving but needy sections of the community.”

In that case, an institution controlled by a church property trust providing residential accommodation for 26 aged women in straitened financial circumstances was held to be a public benevolent institution.

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Having reconsidered the authorities I remain of the view that passage correctly states the law.

47. [47]  The authorities recognise that public benevolent institutions may take many forms. It has been said that they are similar to charities, in the popular, rather than the technical sense, Metropolitan Fire Brigades v Commissioner of Taxation (1990) 27 FCR 279 at 283–6. I agree with the submission for the Commissioner that ultimately it is a jury question and the Court will be guided by matters of impression and degree and that a useful guide is the similarity of the notion of a benevolent institution and the popular notion of a charity.
48. [48]  The authorities emphasise the need for a public benevolent institution to be concerned with the relief of disability of one kind or another and to be so concerned in the sense that relief is freely or voluntarily given, see Perpetual Trustee Company v F C of T (1931) 45 CLR 224 at 235; Mines Rescue Board (NSW) V Commissioner of Taxation (2000) ATC at 4196.7.
49. [49]  It is this element of voluntary giving, an eleemosynary element which appears to be the key to the characterisation of a body as a public

25 benevolent institution. Unless the “intrinsic character of the object which (the body) promotes” (Royal Australasian College of Surgeons v F C of T (1943) 68 CLR 436 at 447.2) or the “predominant and characteristic purpose and activity” (Commissioner of Payroll Tax v Cairnmillar Institute [1992] 2 VR 706 at 713.4) of the body involves the voluntary relief of disability, the body will not be a public benevolent institution however beneficial its activities may be.

[50] Central to the respondent’s submissions was paragraph 5 of its written submission which I set forth in full:

“5. The appellant would not be a public charity for the following reasons which, cumulatively, create a very strong impression:

(i) The main reason is that it was not formed to act as or in a fashion analogous to that of a charity. This is an area where there is a fundamental disagreement between the case for the applicant and that for the respondent. The respondent says that the evidence makes plain that the Land Rights Act was introduced not to assist disadvantaged Aborigines but to recognise the title of traditional owners to land. This was a matter of justice, not charity. Refer Woodward Report
Agreed Bundle p 233, 234, 237. Parliamentary Debates p 256, 269. The Land Rights Act sec 23(1).

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The Land Rights Act s 23(1)

The Native Title Act – a “representative” body

Annual Reports – eg p 314 of Agreed Bundle

Strategic Plan – “Vision Station” – Ex D4

“Our Land, Our Life” – Ex D4

Professor Altman’s paper – Ex D5

Mechanism for election of Council – “Your Voice; Your Choice” – Ex D3

“Land Rights News” – referred to in evidence

The fact that a body performs a representative function is not necessarily inconsistent with a charitable or benevolent purpose, Public Trustee v AG (NSW) (1997) 42 NSWLR 600 at 612, but the nature and extent of the representative role may make it more difficult to apply the ordinary English expression public benevolent institution to the body, cf: Australia Council of Social

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4. (iv)  There would be something odd and inappropriate, even patronising and possibly offensive to Aborigines about the suggestion that their own representative body, funded from mining royalty equivalents in relation to their land, should be treated as a charity.
5. (v)  Members of the aboriginal community might greet the statement that their Land Council was “a benevolent institution” with amazement, perhaps with indignation. (Perpetual Trustee Co supra 45 CLR at 236.4)
6. (vi)  Finally, the essential requirement of a public charity is that it dispenses aid to all members of the relevant class of beneficiaries irrespective of all factors other than need. In Re Compton, Powell v Compton & Ors [1945] 1 Ch 123 at 129.8 –130.4: Aboriginals Hostels Ltd v Darwin City Council (1985) 33 NTR 1 at 14.8) That is not the basis on which land rights are granted. They are granted only to some and “critical tothe whole scheme of the legislation is the concept of ‘traditional Aboriginal owners’ ”, NLC v Aboriginal Land Commissioner (1992) 105 ALR 539 at p 546.5 and 547.5; Tapgnuk v NLC (1996) 5 NTLR 109 at 112, 114 and 118)

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[51] I am of the opinion that the applicant is not a charity within the popular meaning of that word and I have reached the conclusion that it is not a public benevolent institution. I am in broad agreement with the respondent’s submission above. The appellant Land Council’s “predominant and characteristic purpose and activity” is not to assist disadvantaged Aboriginal people, but as a statutory body to perform its functions under the relevant legislation. The fact that performance of these statutory functions assists disadvantaged Aboriginal people is a consequence rather than the object of the legislation. The fact is that the appellant Land Council was not formed to act charitably or benevolently, in the eleemosynary sense. I agree that its discriminatory role in dealing with Aboriginal persons and the primacy accorded traditional owners is inconsistent with the dispensing of benefits according to need, what may be generally regarded as charity or benevolence.

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52. [53]  Not all of the appellant’s functions as prescribed by s 23 Land Rights Act are necessarily benevolent; that is, I do not construe each of its functions as necessarily benevolent in itself or as ancillary or incidental to functions which themselves are benevolent. Particularly is this so in relation tos 23(1)(ea), assisting Aboriginal people “to carry out commercial activities ... in any manner that will not cause the Land Council to incur financial liability or enable it to receive financial benefit”. It is well established that if each function of an institution is either benevolent in itself or necessarily incidental to other functions which themselves are benevole nt then the institution is a benevolent institution whereas if a function is non–benevolent and not merely incidental or ancillary to a main benevolent purpose or function the institution will not be benevolent, Stratton v Simpson (1970) 125 CLR 138 at 159–160; Royal Australasian College of Surgeons v Commissioner of Taxation (Clth) (1943) 68 CLR 436 at 447;Gumbangerrii v Nambucca Council (1996) 131 FLR 115 at 121–122.

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