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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Nettheim, Garth --- "Tangentyere Council Inc v Commissioner of Taxes (Pay-roll tax - exemption - whether Aboriginal body a public benevolent institution)" [1990] AboriginalLawB 33; (1990) 1(45) Aboriginal Law Bulletin 11

Tangentyere Council Inc v Commissioner of Taxes

Pay-roll tax - exemption - whether Aboriginal body a public benevolent institution.

Tangentyere Council Inc v Commissioner of Taxes

Supreme Court of the Northern Territory: Angel J

4th May 1990

Casenote by Garth Nattheim

Many tax acts over the years, in Australia, England and elsewhere, have granted exemption to "public benevolent institutions". The Pay-roll Tax Act, 1984 (NT), S.9(a) provides such exemption.

Tangentyere Council was refused such exemption by the Commissioner of Taxes and appealed, pursuant to s.35, to the Supreme Court.

Angel J noted that, while a substantial body of case law has evolved around the words "public benevolent institution", the expression has not been absolutely defined. The phrase "is to be understood in its ordinary English usage (which has no fixed meaning)" in contrast to such phrases as "public charity" and "charitable institution" which arc normally "to be treated in a technical legal sense". After reviewing a number of judicial statements His Honour said:

Whether the appellant is a public benevolent institution paying wages to employees exclusively engaged in benevolent work is, in my opinion, for the purposes of s.9(a) and (c) of the Pay-roll Tax Act (1984) (NT), to be determined having regard to a number of factors which include - the constitution of the appellant, the membership of the managing and governing body thereof, the sources of its monies, the public accountability of the appellant, the class or classes of the recipients of its benevolence, the characteristics of the class or classes of recipients of its benevolence, the scope and nature of the work done by the appellant, whether fees are payable by the recipients of the appellants work or charges made by the appellant and if so the the nature of those fees or charges, and whether the overall work of the appellant is beneficial to the public at large.

Angel J proceeded to consider the nature of the Tangentyere Council which services the 19 Aboriginal town camps around Alice Springs with a fluctuating population of 1000-1500 people. Its membership includes Aboriginal camp associations, adult residents of incorporated member communities, and members of Aboriginal town associations. Its main sources of finance are the Federal Government, the NT Government, government agencies and other statutory bodies. It is publicly accountable for the funds it receives.

The appellant services not only the permanent and transient occupiers of the town camps referred to in the Dixon report, but members of town camps visiting relatives in remote Aboriginal Communities of Central Australia. The appellant provides a wide range of services including mailing and banking facilities, the installation and maintenance of a reticulated water system to camps and houses, gardening, the erection and maintenance of parks, the collection of rubbish and garbage, the provision of transport, education and advice. The work of the appellant is directed to the benefit of Aboriginal persons or persons of Aboriginal descent....

The evidence in the present case is overwhelming that the permanent and transient residents of the Alice Springs town camps and the relevant remoter communities constitute an appreciable needy class in the Northern Territory community...

Angel J considered evidence of health problems of the town dwellers and their special housing requirements. He rejected an argument by the respondent that their disadvantage was a matter of choice.

The objects of the appellants 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 in 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 discrete 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...

He also rejected an argument that Tangentyere Council, in so far as its activities constituted it an umbrella organization, co-ordinating housing associations, was not giving sufficiently direct relief to the town campers. He held that other activities of the appellant, political or commercial, were incidental to the principal activities. And he rejected an argument that the term "benevolent" could not apply to Tangentyere's activities in assisting town camp occupants to retain and observe their non-Western customary values, tradition and culture; instead, he found much in the tradition of the common law in support of plurality and diversity.

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 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 Pay-roll Tax Act.

The appeal should be allowed.

For the appellant: J Larkins QC with Dr J Scutt, instructed by P Ditton.

For the Respondent: G Hiley QC with R Silva, instructed by the Solicitor for the Northern Territory.

The respondents have lodged an appeal to the High Court.

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