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Published online by Cambridge University Press: 24 January 2025
Twenty years on from Mabo v Queensland (No 2) (1992) 175 CLR 1, there is change afoot in the tax treatment of native title. On 25 June 2013, the federal Parliament passed reforms which render certain payments to, or for the benefit of, Indigenous persons exempt from income tax. To qualify, the payments must be made under native title agreements for acts affecting native title, or by way of compensation under the Native Title Act 1993 (Cth). While drafted in simple language, the reforms apply against a complex factual backdrop of native title agreements, trust structures and social policy issues.
This paper argues that the reforms are likely to cause significant implementation difficulties for energy and resources proponents and Indigenous groups. They also raise potential hurdles for the government's objectives of reducing uncertainty in the tax treatment of native title rights and of improving economic and social outcomes for native title groups. The significance of these problems is highlighted by the scale of benefits under native title agreements over land access. The paper therefore questions whether an earlier option raised by the government, an Indigenous Community Fund model, deserves further consideration. It would more directly link tax exemption to outcomes, would improve the certainty of tax treatment and would also better support the intermediary Indigenous benefits management institutions which will play a critical role in achieving those outcomes.
The author would like to express his gratitude to Jean Bursle, Jared Clements, Geoff Gishubl, Len Hertzman and Marcus Ryan for their comments in contemplation of, or on, an earlier version of this work. The views expressed in this paper, along with any errors, are the author's own and do not represent those of the University of Western Australia or Ashurst Australia. This article was accepted for publication on 10 June 2013.
1 (1992) 175 CLR 1.
2 NT Tax Act sch 1.
3 See, eg, The Treasury (Cth), ‘Native Title, Indigenous Economic Development and Tax’ (Consultation Paper, October 2010) 2, 5 ('2010 Consultation Paper’).
4 For further detail on land access agreements, see below Parts 1.2.2 and 2.1.1.
5 Exposure Draft Tax Laws Amendment (Tax Treatment of Native Title Benefits) Bill 2012 (Cth) ('Exposure Draft Bill’).
6 See below Part 1.2.2.
7 See below Part 3.
8 Tax Laws Amendment (2013 Measures No 2) Act 2013 (Cth) sch 11 pt 2.
9 (1992) 175 CLR 1.
10 Nicola Roxon, Attorney-General and Minister for Emergency Management and Jenny Macklin, Minister for Families, Communities and Indigenous Affairs and Minister for Disability Reform, ‘The Future of Native Title’ (Media Release, 6 June 2012).
11 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 2013, 2387; Commonwealth, Parliamentary Debates, Senate, 25 June 2013, 67.
12 NT Tax Act sch 1 item 3 (proposed Income Tax Assessment Act 1997 (Cth) ('ITAA97’) ss 59–50(1), 59–50(5), 59–50(6)).
13 Ibid sch 1 item 3 (proposed ITAA97 s 59–50(5)).
14 Ibid sch 1 item 3 (proposed ITAA97 s 59–50(3)).
15 ITAA97 s 6–15(3). Income tax law provides for two chief categories of non-assessable income: exempt income and NANE income: ITAA97 ss 6–15(2), 6–15(3). Key differences include that exempt income may reduce carry forward tax losses or may be counted for the purposes of calculating the tax rates on a taxpayer's assessable income. See, eg, Woellner, RH et al, Australian Taxation Law (22nd ed, CCH Australia, 2011) 499.Google Scholar
16 NT Tax Act sch 1 item 3 (proposed ss 59–50(2), 59–50(3), 59–50(4) ITAA97).
17 Explanatory Memorandum, Tax Laws Amendment (2012 Measures No 6) Bill 2012 (Cth) 14 [1.20] ('Explanatory Memorandum’).
18 NT Tax Act sch 1 item 3 (proposed ITAA97 s 59–50(4)(b)).
19 Ibid sch 1 item 3 (proposed s 118–77 ITAA97).
20 Explanatory Memorandum 19 [1.33].
21 NT Tax Act sch 1 item 1.
22 Ibid sch 1 item 9.
23 Ibid cl 4. Taxpayers, particularly individuals, might otherwise be out of time in respect of some years: ITAA36 s 170.
24 See also, National Native Title Tribunal, ‘Native Title’ (National Report No 8, February 2012) 4 (there have been 35 active and determined compensation applications since 1 January 1994, as compared to 1,616 native title applications and 553 registered ILUAs over the same period); National Native Title Tribunal, Facts and Figures (31 May 2012) <http://www.nntt.gov.au/Information-about-native-title/Pages/Factsandfigures.aspx> (there have been eight active compensation applications of a total of 473 active native title applications); Stewart, Miranda, ‘The Income Taxation of Native Title Agreements’ (2011) 39 Federal Law Review 361, 367–8.CrossRefGoogle Scholar
25 Exposure Draft Bill cl 3 (proposed ITAA97 s 59–50(5)); NT Act ss 226, 227.
26 LexisNexis, Energy and Resources Law in Australia (at 29 October 2012) [280.010]. As to mining leases under the Mining Act 1978 (WA) and a general purpose lease under the Mining Act 1978 (WA) (used for stockpiling and processing ore), see Western Australia v Ward (2002) 213 CLR 1, 166 [309], 176 [340]–[341] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
27 (2001) 108 FCR 453, 471 [48], 474 [61] (French J), 476 [70] (Merkel J), 486 [114] (Dowsett J). See also LexisNexis, Halsbury's Laws of Australia vol 1(1) (at 11 October 2012) 5 Aboriginals and Torres Strait Islanders, ‘4 Future Acts’ [5.8005].
28 National Native Title Tribunal, ‘Native Title', above n 24, 2.
29 LexisNexis, Energy and Resources Law, above n 26, [282.630].
30 NT Tax Act sch 1 item 3 (proposed ITAA97 s 59–50(5) note 2).
31 Explanatory Memorandum 17 [1.28].
32 NT Tax Act sch 1 item 3 (proposed ITAA97 s 59–50(5)(a)). An ancillary agreement would cover an agreement directly linked to the primary agreement which, for instance, sets out the detail on how and when benefits agreed under the primary agreement will be provided: Explanatory Memorandum 18 [1.29].
33 In very simplified terms, a future act is an act affecting native title which occurs on or after 1 January 1994 or, in the case of legislation, 1 July 1993, provided it is not a ‘past act': NT Act s 233.
34 NT Act s 24AA(2).
35 National Native Title Tribunal, ILUA or the Right to Negotiate Process? A Comparison for Mineral Tenement Applications (2008) 2; LexisNexis, Energy and Resources Law, above n 26, [284.210].
36 NT Act ss 24EB(2), 24EBA(2), 24EBA(3).
37 Ibid ss 24MD(1), 26(1)(c).
38 Ibid ss 24BA, 24CA, 24DA.
39 Ibid ss 24BI, 24CK, 24CL, 24DL.
40 Ibid ss 24EB, 24EBA.
41 Ibid ss 25(2), 25(3).
42 Ibid s 31(1)(b).
43 Ibid s 41.
44 Ibid s 41A(1).
45 NT Tax Act sch 1 item 3 (proposed ITAA97 s 59–50(5)(a) note 1(b)).
46 ITAA97 ss 2–35, 950–100(1).
47 Ibid s 2–35; Acts Interpretation Act 1901 (Cth) s 15AD.
48 Acts Interpretation Act 1901 (Cth) s 15AD.
49 Explanatory Memorandum, Acts Interpretation Amendment Bill 2011 (Cth) 19 [103].
50 NT Act s 26(1)(c)(i).
51 The definition includes such items as roads, railways, ports, electricity generation and transmission facilities, storage and distribution facilities for oil and gas and dams: NT Act s 253.
52 BHP Billiton Pty Ltd v Karriyarra Native Title Claimants [2004] WAMW 22, 5–6 [3] (Calder SM); LexisNexis, Native Title (at 7 December 2012) [2546].
53 NT Act s 26D(1).
54 Ibid ss 32, 237.
55 LexisNexis, Energy and Resources Law, above n 26, [284.290].
56 1 July 1993 if it occurred by the making of legislation.
57 Broadly, past acts are acts that are invalid from a native title perspective by operation of the Racial Discrimination Act 1975 (Cth) ('RD Act’), but would not be invalid if native title did not exist or was not affected. The acts must generally have occurred before 1 January 1994 (or 1 July 1993 in the case of legislation) although they also include the exercise of certain options, extensions and renewals relating to earlier acts or arrangements: NT Act s 228.
58 For instance, if the act occurred before the application of the RD Act, which applies from 1 November 1975.
59 See, eg, NT Act ss 14(1), 19(1). A state or territory law could theoretically impose a requirement for an agreement.
60 Ibid s 45(1); Western Australia v Ward (2002) 213 CLR 1, 100 [108], 170 [321] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
61 The broader reform process stretches back even further to proposals by Peter Costello and Daryl Williams in 1998: Peter Costello, Treasurer and Daryl Williams, Attorney-General, ‘Taxation Implications of the Native Title Act and Legal Aid for Native Title Matters’ (Media Release, 13 February 1998) 4; House of Representatives Standing Committee on Economics, Parliament of Australia, Advisory Report on the Tax Laws Amendment (2012 Measures No 6) Bill 2012 (2013) 4 [1.9].
62 Explanatory Memorandum 12 [1.12]–[1.13]; Explanatory Material, Exposure Draft Tax Laws Amendment (Tax Treatment of Native Title Benefits) Bill 2012 (Cth) 2 [1.10]; Nicola Roxon, Attorney-General and Minister for Emergency Management and David Bradbury, Assistant Treasurer and Minister Assisting for Deregulation, ‘Release of Exposure Draft Materials to Provide Clarity on the Tax Treatment of Native Title Benefits’ (Media Release No 79, 27 July 2012). The media release refers also to an earlier consultation paper that identifies the objective of reducing complexity and improving certainty: The Treasury (Cth), 2010 Consultation Paper, above n 3, v.
63 David Bradbury, Assistant Treasurer and Minister Assisting for Deregulation, Nicola Roxon, Attorney-General and Minister for Emergency Management and Jenny Macklin, Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform, ‘Government Clarifies Native Title Tax Treatment’ (Media Release No 149, 29 November 2012).
64 Explanatory Material, Exposure Draft Tax Laws Amendment (Tax Treatment of Native Title Benefits) Bill 2012 (Cth) 2 [1.8]; The Treasury (Cth), 2010 Consultation Paper, above n 3, 2–5.
65 The Treasury (Cth), 2010 Consultation Paper, above n 3, 2. Mining withholding tax provisions do exist in ITAA36 pt III div 11C. However, their scope is relatively limited and the better view is that they do not apply to payments in respect of native title rights or interests. See, eg, Martin, Fiona, ‘Native Title Payments and their Tax Consequences: Is the Federal Government's Recommendation of a Withholding Tax the Best Approach?’ (2010) 33 University of New South Wales Law Journal 685, 690–2.Google Scholar
66 For further discussion of the lack of certainty under the existing law, see especially, Lisa Strelein, ‘Taxation of Native Title Agreements’ (Native Title Research Monograph No 1/2008, AIATSIS, May 2008); Cassidy, Julie, ‘Black Fella Land – White Fella Tax: Changing the CGT Implications of Aboriginal/Native Title’ (2010) 25 Australian Tax Forum 397Google Scholar; Stewart, above n 24, 361; Martin, above n 65; Black, Warren, ‘Tax Implications to Native Title Holders of Compensation Payments’ (1999) 2 Journal of Australian Taxation 344.Google Scholar
67 There is at least some judicial guidance which accepts immediate deductibility: Cape Flattery Silica Mines Pty Ltd v Federal Commissioner of Taxation (1997) 36 ATR 360.
68 Roxon and Bradbury, above n 62. See also, Roxon and Macklin, above n 10; Bradbury, Roxon and Macklin, above n 63 ('achieve sustainable outcomes’).
69 Roxon and Macklin, above n 10. See also, Bradbury, Roxon and Macklin, above n 63; Roxon and Bradbury, above n 62.
70 See, eg, Jenny Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs, ‘Beyond Mabo: Native Title and Closing the Gap’ (Speech delivered at the 2008 Mabo Lecture, James Cook University, Townsville, 21 May 2008) <http://jennymacklin.fahcsia.gov.au/node/764> 8, 11.
71 As to the ‘closing the gap’ initiative, see Department of Families, Housing, Community Services and Indigenous Affairs, Closing the Gap: The Indigenous Reform Agenda (15 June 2012) <www.fahcsia.gov.au/our-responsibilities/indigenous-australians/programs-services/closing-the-gap>.
72 See also J C Altman, ‘Native Title and Taxation Reform', CAEPR Topical Issue 2010/04, Centre for Aboriginal Economic Policy Research, Australian National University (2010) 3; National Native Title Council, Submission to The Treasury (Cth), Tax Treatment of Native Title Benefits, 30 August 2012, 3.
73 Michael Plumb, Christopher Kent and James Bishop, ‘Implications for the Australian Economy of Strong Growth in Asia’ (Paper presented at the International Monetary Fund, the Australian Treasury and the Reserve Bank of Australia's Structural Change and the Rise of Asia Conference, Canberra, 19 September 2012) 15; The Treasury (Cth), Mid-year Economic and Fiscal Outlook 2012-13 (2012) 30.
74 Reserve Bank of Australia, Statement on Monetary Policy (November 2012) 38.
75 Of course, continued resources investment will necessitate new agreements.
76 See, eg, Debra Jopsen, ‘Share in Fortescue Riches a Step Closer for People of the Pilbara', The Sydney Morning Herald (Sydney) 25 August 2011, 11; Jeanette Francis, ‘Paying the Price: The Battle for James Price Point', SBS World News (online) 20 August 2012 <http://www.sbs.com.au/news/article/1684063/Paying-the-Price-The-battle-for-James-Price-Point>; Flip Prior, ‘Aboriginals Get Jobs Pact at New Mine', The West Australian (Perth) 29 June 2011, 40; Andrew Duffy, ‘BHP Inks Massive Native Title Deal', Australian Mining (online) 20 August 2012 <http://www.miningaustralia.com.au/news/bhp-inks-massive-native-title-deal>; Jessica Burke, ‘Rio, Pilbara Owners Sign Australia-first Native Title Agreement', Australian Mining (online) 3 June 2011 <http://www.miningaustralia.com.au/news/rio-pilbara-traditional-owners-sign-australian-fir>; Rio Tinto, ‘Rio Tinto Seals Comprehensive Land Use Agreements with Traditional Owners Across the Pilbara Region’ (Media Release, 3 June 2011).
77 See, eg, Chamber of Minerals and Energy of Western Australia, Submission No 5 to House of Representatives Standing Committee on Economics, Parliament of Australia, Inquiry into the Tax Laws Amendment (2012 Measures No 6) Bill 2012, 19 December 2012, 2.
78 Langton, Marcia and Mazel, Odette, ‘Poverty in the Midst of Plenty: Aboriginal People, the “Resource Curse” and Australia's Mining Boom’ (2008) 26 Journal of Energy & Natural Resources Law 31, 57.CrossRefGoogle Scholar
79 See, eg, Altman, ‘Native Title and Taxation Reform', above n 72, 3.
80 As to the range of benefits that may be provided, see, eg, Martin, above n 65, 688.
81 See, eg, NT Act ss 226(2)(b), (d). While the term ‘act’ is not defined in the NT Tax Act, it is expected that it would bear a meaning analogous to the way in which it is defined in the NT Act.
82 See, eg, National Native Title Tribunal, ILUA or the Right to Negotiate Process?, above n 35, 4–5.
83 Despite the reference to an ‘ancillary agreement’ in the NT Tax Act sch 1 item 3 (proposed ITAA97 s 59–50(5)(a)(ii)), it would typically be the overarching land access agreement which provides the source of the obligation to pay benefits and, hence, ‘under’ which benefits are provided, and not the separate agreement with the state or territory: Federal Commissioner of Taxation v Sara Lee Household & Body Care (Aust) Pty Ltd (2000) 201 CLR 520, 537 [42], 539 [49] (Gleeson CJ, Gaudron, McHugh and Hayne JJ).
84 Explanatory Memorandum 12 [1.13].
85 Glenboig Union Fireclay Co Ltd v Inland Revenue Commissioners (1922) 12 TC 427, 463 (Lord Buckmaster), 465 (Lord Wrenbury); Woellner et al, above n 15, 292.
86 Which may be numerous given the non-extinguishment principle under the NT Act s 238.
87 For a discussion of the compensation capital/income analysis to native title payments, see, eg, Strelein, above n 66, 44–8; Cf Black, above n 66, 355–7. As to temporary impairment, see also Woellner et al, above n 15, 297.
88 McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381, 390–1 (Dixon CJ, Fullagar and Kitto JJ). For a post-CGT case, see CSR Ltd v Federal Commissioner of Taxation (2000) 171 ALR 392, 407 [74], 408 [81] (Gyles J). See also Woellner et al, above n 15, 305–8.
89 Explanatory Memorandum 12 [1.11]–[1.13]; The Treasury (Cth), 2010 Consultation Paper, above n 3, 2–5.
90 Ronpibon Tin NL v Federal Commissioner of Taxation (1949) 78 CLR 47, 55, 59 ('Ronpibon Tin’); See also Parsons, Ross, Income Taxation in Australia: Principles of Income, Deductibility and Tax Accounting (Sydney Lawbook, 1985) 482.Google Scholar
91 ITAA97 s 8–1(1).
92 Federal Commissioner of Taxation v Day (2008) 236 CLR 163, 179–80 [30]–[33] (Gummow, Hayne, Heydon and Kiefel JJ); Spriggs v Federal Commissioner of Taxation (2009) 239 CLR 1, 18–19 [55]–[58] (French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ); Ronpibon Tin (1949) 78 CLR 47, 56–7 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Federal Commissioner of Taxation v Anstis (2010) 241 CLR 443, 455–6 [27]–[30] (French CJ, Gummow, Kiefel and Bell JJ).
93 Federal Commissioner of Taxation v Day (2008) 236 CLR 163, 178–9 [29] (Gummow, Hayne, Heydon and Kiefel JJ).
94 For instance, the defamation settlement and legal costs which followed on from newspaper publication activities in Herald & Weekly Times Ltd v Commissioner of Taxation (1932) 48 CLR 113 or the legal costs in Federal Commissioner of Taxation v Day which flowed from Day's obligation not to undertake certain conduct as a public officer: (2008) 236 CLR 163, 182–3 [37] (Gummow, Hayne, Heydon and Kiefel JJ).
95 For instance, expenditure on head office administration to support investment operations (Ronpibon Tin (1949) 78 CLR 47, 58–60 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ)), or paying a joint managing director to induce him to resign so as to improve the company's efficiency (W Nevill & Co Ltd v Federal Commissioner of Taxation (1937) 56 CLR 290).
96 The Macquarie Dictionary definition of ‘services’ is: ‘the performance of any duties or work for another; helpful activity’ (Butler, Susan (ed), Macquarie Dictionary Online (Macquarie Dictionary Publishers Pty Ltd, 2012)Google Scholar).
97 (1949) 78 CLR 47. The case related to the precursor provision, being ITAA36 s 51(1).
98 Ronpibon Tin (1949) 78 CLR 47, 59 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ). It is this type of undifferentiated sum which seems most analogous to the benefits provided under land access agreements, rather than the second type of expenditure referred to in the case, being ‘a single outlay or charge which serves both objects indifferently': at 59.
99 Ibid 56 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ).
100 ITAA97 s 112–30.
101 See, eg, Australian Taxation Office, Income Tax: Scheme of Arrangement – Merger of Gloucester Coal Limited and Yancoal Australia Limited, CR 2012/54, 18 July 2012, 9 [46]; Australian Taxation Office, Income Tax: Scheme of Arrangement — Centrebet International Limited, CR 2011/89, 12 October 2011, 5 [31], 5 [33]; Australian Taxation Office, Income Tax: Scrip for Scrip Roll-over: Acquisition of South Australian Coal Limited by White Energy Mining Pty Limited, CR 2011/63, 29 June 2011, 12 [74]–[77]. There is also some support for this approach in cases dealing with undivided compensation payments for liquidated claims, or at least claims ascertainable by calculation, such as Tilley v Wales [1943] AC 386, 398 (Lord Porter), 393–4 (Cf Viscount Simon LC, Lord Atkin and Lord Russell concurring), (remitted to the Commissioner for ‘reasonable apportionment’) 396 (Cf Lord Thankerton); Woellner et al, above n 15, 304.
102 NT Act ss 38, 39, 51, 240; LexisNexis, Native Title, above n 52, [2199Z]; Re Koara People (1996) 132 FLR 73, 87. For instance, the grant of a mining lease may also require regard to be had to the principles in Mining Act 1978 (WA) s 123: Re Koara People (1996) 132 FLR 73, 88.
103 Unless, perhaps, assessed as a residual item after subtracting all other items from the value of the benefits provided under the land access agreement.
104 Of itself, litigation would involve a significant number of risks for the parties: see, eg, Arnold Bloch Leibler and Yamatji Marlpa Aboriginal Corporation, Submission to The Treasury (Cth), Tax Treatment of Native Title Benefits, 24 August 2012, 5–6.
105 Minerals Council of Australia, Submission to The Treasury (Cth), Tax Treatment of Native Title Benefits, August 2012, 4.
106 It is difficult to see how the apportionment could affect deductibility.
107 This is partly due to the lengthy process involved in obtaining a determination of native title and partly due to the possibility in certain circumstances of the restoration of native title (for instance, under NT Act s 47B). See, eg, Minerals Council of Australia, above n 105, 3.
108 NT Act ss 51, 223(1).
109 Explanatory Memorandum 17 [1.28].
110 NT Act s 62(2)(d).
111 Especially since the words must be applied to the benefits each income year.
112 See, eg, Explanatory Memorandum 13 [1.15].
113 The compensation calculation provisions of the NT Act also provide relevant context in this regard. Note that s 51 states that the entitlement to compensation ‘is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests'.
114 Minerals Council of Australia, above n 105, 3.
115 As to PAYG withholding, see Part 2.1.6 below.
116 The Treasury (Cth), 2010 Consultation Paper, above n 3, 5–6.
117 NT Tax Act sch 1 item 3 (proposed ITAA97 s 59–50(6)).
118 Dal Pont, G E, Law of Charity (LexisNexis Butterworths, 2010) 65–6 [3.32]–[3.33].Google Scholar
119 Kafataris v Deputy Commissioner of Taxation (2008) 172 FCR 242, 249–50 [42]–[43] (Lindgren J). See also, Colonial First State Investments Ltd v Federal Commissioner of Taxation (2011) 192 FCR 298, 306 [20] (Stone J); Thomson Reuters, Law of Trusts, (at 1 December 2009) [5.050].
120 Dal Pont, above n 118, 66 [3.33], 361 [14.25]; Heydon, J D, Jacobs’ Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006) 202 [1067]Google Scholar; Thomson Reuters, above n 119, [21.170]; Solicitor-General (NSW) v Wylde (1945) 46 SR (NSW) 83, 105–10 (Nicholas CJ).
121 See, eg, Charitable Trusts Act 1962 (WA) s 21. A number of other statutory bases also exist.
122 Metropolitan Petar v Mitreski [2001] NSWSC 976, [4] (Hamilton J).
123 The trust must be for charitable purposes in the manner discussed in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, 573 (Lord Herschell, Lord Watson concurring), 583 (Lord Macnaghten, Lords Morris and Watson concurring) in light of the preamble to the Charitable Uses Act 1601 (43 Eliz I c4). See also Aid/Watch Incorporated v Federal Commissioner of Taxation (2010) 241 CLR 539, [18] (French CJ, Gummow, Hayne, Crennan and Bell JJ). The need for purposes rather than persons is also clear under the statutory definition of charity contained in Charities Act 2013 (Cth) s 5 (which will apply from 1 January 2014).
124 A-G (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209, 222–3 (Dixon and Evatt JJ); BSH Holdings Pty Ltd v Commissioner of State Revenue (Vic) (2000) 2 VR 454, 458 [16] (Hansen J); J D Heydon, above n 120, 141–2 [1005].
125 In the context of duties legislation, see BSH Holdings Pty Ltd v Commissioner of State Revenue (Vic) (2000) 2 VR 454, 458 [16] (Hansen J).
126 See, eg, Thomson Reuters, above n 119, [20.1510]–[20.1890].
127 [2004] 3 NZLR 157.
128 Ibid 168 [29].
129 TLA 2013 Measures No 2 Act sch 11 pt 2.
130 As to commencement, see ibid cl 2(1) item 16.
131 Ibid sch 11 item 6.
132 ITAA97 s 995–1(1) (definition of ‘registered charity’).
133 The additional registration requirements are that the entity be a charity, be a not-for-profit entity, have an Australian Business Number, be in compliance with specified governance and external conduct standards and not be included in a written decision of an Australian government agency under an Australian law relating to the characterisation of entities as engaging in or supporting terrorist or criminal activities: Australian Charities and Not-for-profits Commission Act ss 25–5(1), (3), (5). In addition, TLA 2013 Measures No 2 Act proposes a transitional measure to ensure that entities endorsed as charities under the pre-Australian Charities and Not-for-profits Commission regime could also qualify: TLA 2013 Measures No 2 Act sch 11 item 8.
134 TLA 2013 Measures No 2 Act sch 11 item 5 (emphasis added).
135 Exposure Draft Bill cl 3 (proposed ITAA97 s 59–50(3)).
136 For an example of concern over the scope of this concept, see, eg, Miranda Stewart, Maureen Tehan and Marcia Langton, Submission to The Treasury (Cth), Tax Treatment of Native Title Benefits, 23 August 2012, 10–11.
137 NT Tax Act sch 1 item 3 (proposed ITAA97 s 59–50(5)).
138 Taxation Administration Act 1953 (Cth), sch 1 s 12–190(1).
139 Ibid sch 1 s 12–190(2).
140 Ibid sch 1 s 12–1(1A).
141 See, eg, Ciaran O'Faircheallaigh, ‘Use and Management of Revenues from Indigenous-Mining Company Agreements: Theoretical Perspectives’ (Agreements, Treaties and Negotiated Settlements Project: Working Paper Series No 1/2011, June 2011) 26; Jon Altman, ‘Contestations Over Development’ in Jon Altman and David Martin (eds) Power, Culture, Economy: Indigenous Australians and Mining (Australian National University E Press, 2009) 1, 6; Jon Altman, Submission to Attorney-General's Department (Cth), Leading Practice Agreements: Maximizing Outcomes from Native Title Benefits, 25 November 2010, 8.
142 See, eg, The Economist, ‘Welfare in India: Money Where Your Mouth Is', The Economist (London) 10 November 2012, 27–8.
143 See, eg, Explanatory Memorandum 14–15 [1.21]–[1.22]. The ramifications of streaming non-NANE and NANE income to selected recipients, such as, respectively, tax exempt and taxable entities, is not discussed in the Explanatory Memorandum, although arguably, anti-avoidance provisions such as ITAA36 pt IVA should be considered.
144 O'Faircheallaigh, above n 141, 10–12.
145 Ibid 24. See also, Levitus, Robert, ‘Aboriginal Organisations and Development: The Structural Context’ in Altman, Jon and Martin, David (eds) Power, Culture, Economy: Indigenous Australians and Mining (Australian National University E Press, 2009) 73, 93.Google Scholar
146 O'Faircheallaigh, above n 141, 25.
147 Langton and Mazel, above n 78, 59–60. See also at 65. The Minerals Council of Australia and the National Native Title Council have also identified the importance of Indigenous organisations to improved outcomes from the management of benefits, with a proposed ‘Indigenous Community Development Corporation’ incorporating capacity building and integrity measures: Minerals Council of Australia and National Native Title Council, Submission to The Treasury (Cth), Indigenous Economic Development from Mining Agreements, 30 November 2010.
148 Langton and Mazel, above n 78, 65.
149 For further examples, see, eg, the discussion of entities established under the Yandi Land Use Agreement in Holcombe, Sarah, ‘Indigenous Entrepreneurialism and Mining Land Use Agreements’ in Altman, Jon and Martin, David (eds), Power, Culture, Economy: Indigenous Australians and Mining (Australian National University E Press, 2009) 149Google Scholar; Minerals Council of Australia and National Native Title Council, above n 147, 19–20.
150 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 2013, 2380–1 (David Bradbury, Assistant Treasurer and Minister Assisting for Deregulation).
151 Mark Dreyfus, Attorney-General and Minister for Emergency Management, Jenny Macklin, Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform and David Bradbury, Assistant Treasurer and Minister Assisting for Deregulation, ‘Native Title Tax Treatment to be Examined’ (Media Release, 18 March 2013).
152 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 2013, 2380 (David Bradbury, Assistant Treasurer and Minister Assisting for Deregulation).
153 ITAA97 s 50–5 item 1.1. See, eg, Australian Taxation Office, Income Tax and Fringe Benefits Tax: Charities, TR 2011/4, 12 October 2011, 55 [230].
154 The Treasury (Cth), ‘Tax Treatment of Native Title Benefits: Summary of Consultation Process’ (Consultation Process Summary, November 2012) 1. See also House of Representatives Standing Committee on Economics, above n 61, 7 [1.19].
155 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 2013, 2380 (David Bradbury, Assistant Treasurer and Minister Assisting for Deregulation). See also Dreyfus, Macklin and Bradbury, above n 151.
156 The Treasury (Cth), 2010 Consultation Paper, above n 3, 10–13.
157 Ibid 10, 12.
158 Ibid 11.
159 Ibid.
160 Ibid.
161 Ibid.
162 Ibid 12.
163 Minerals Council of Australia and National Native Title Council, above n 147, 14–22. Despite the title, the institution could comprise a corporation or a trust.
164 Ibid 22.
165 Levitus, above n 145, 91.
166 See, eg, O'Faircheallaigh, above n 141, 18. See also, Langton and Mazel, above n 78, 60.
167 Australian Charities and Not-for-profits Commission Act 2012 (Cth) ss 45–10(2A), 50–10(2A), 60–10, 60–20, 60–25, 65–5, 205–25; Australian Charities and Not-for-profits Commission, Factsheet: Ongoing Obligations of Registered Charities (2012) <http://www.acnc.gov.au/ACNC/Pblctns/Factsheets/ACNC/FTS/Fact_ongObl_regChar.aspx>.
168 Minerals Council of Australia and National Native Title Council, above n 147, 14.
169 The Treasury (Cth), 2010 Consultation Paper, above n 3, 13.