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Published online by Cambridge University Press: 01 January 2025
There has been limited research into the relevance of public benevolent institutions (‘PBI's) to the management of native title benefits. Despite this omission, a new, tax-effective, structure was proposed in 2013, being the ‘Indigenous Community Development Corporation’ (‘ICDC’). PBI characterisation is also becoming more relevant as native title determination numbers increase, such that there is a suitable and interested body, the prescribed body corporate (‘PBC’) that can pursue a variety of functions in fulfilling its statutory duties and in seeking to realise the economic, social and cultural objectives of Indigenous groups. This article asserts that a purpose of addressing Indigenous disadvantage is a PBI purpose and that it permits a broad range of activities in order to meet that end. Accordingly, PBI status should be available for many PBCs and other benefits management structure institutions. As a result, the proposed grounds for introducing the ICDC are significantly less compelling and it is argued that a more cautious approach is warranted, being one that better recognises ICDC limitations and that does not over-emphasise the potential benefits.
The author thanks an anonymous reviewer and Jared Clements for their considered comments on an earlier version of this paper. This article builds on an earlier presentation to the Tax Institute of Australia (WA Division).
1 See, eg, Marcia Langton et al, Agreements, Treaties and Negotiated Settlements Project (19 February 2015) <http://www.atns.net.au/default.asp>; Ciaran O’Faircheallaigh, ‘Registered Native Title Bodies Corporate and Mining Agreements: Capacities and Structures’ in Toni Bauman, Lisa M Strelein and Jessica K Weir (eds), Living with Native Title: The Experiences of Registered Native Title Corporations (AIATSIS Research Publications, 2013) 275; Treasury (Cth), ‘Native Title, Indigenous Economic Development and Tax’ (Consultation Paper, October 2010); Jenny Macklin and Robert McClelland, ‘Leading Practice Agreements: Maximising Outcomes from Native Title Benefits’ (Discussion Paper, Department for Families, Housing, Community Services and Indigenous Affairs and Attorney-General's Department, July 2010). Jon Altman has had a very long interest in the area. See, eg, Altman, Jon C, Aborigines and Mining Royalties in the Northern Territory (Australian Institute of Aboriginal Studies, 1983).Google Scholar
2 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); Rob Heferen et al, ‘Taxation of Native Title and Traditional Owner Benefits and Governance Working Group’ (Report to Government, 1 July 2013); 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.Google Scholar
3 Council of Australian Governments, National Indigenous Reform Agreement (Closing the Gap) (revised February 2011) <www.coag.gov.au/node/145>.
4 Rob Heferen et al, above n 2, 14.
5 Ibid. See also Minerals Council of Australia and National Native Title Council, Submission to Treasury (Cth), Native Title, Indigenous Economic Development and Tax, 30 November 2010, 16–17.
6 See generally Yamatji Marlpa Aboriginal Corporation, ‘Pilbara Native Title Groups Reach Agreement with Rio Tinto’ (Media Release, 3 June 2011); Adam Levin, ‘Observations on the Development of Native Title Trusts in Australia’ (Paper presented at the STEP Australasia Conference, Sydney, 28–30 May 2014) 8–9, 15–16.
7 Native Title Act pt 2 div 6. As to the use of PBCs in benefits management structures, see, eg, Andrew Morgan, ‘Native Title Trusts’ (Paper presented at the Legalwise Native Title Conference, Perth, 13 June 2014) 7–10.
8 (2014) 221 FCR 302.
9 O’Faircheallaigh, ‘Registered Native Title Bodies Corporate’, above n 1, 275–6.
10 David Bradbury, Assistant Treasurer, Jenny Macklin, Minister For Families, Community Services and Indigenous Affairs, and Mark Dreyfus, Attorney-General, ‘Benefiting Indigenous Communities Through Native Title Reform’ (Media Release, No 150, 3 August 2013).
11 (2014) 221 FCR 302, 314 [66] (Edmonds, Pagone and Wigney JJ).
12 Ibid 309 [38]–[39], 314 [66]–[67] (Edmonds, Pagone and Wigney JJ).
13 Public Trustee of NSW v Federal Commissioner of Taxation (1934) 51 CLR 75, 103 (Dixon J); Dal Pont, G E, Law of Charity (LexisNexis Butterworths, 2010) 36.Google Scholar
14 (1931) 45 CLR 224.
15 (1985) 1 NSWLR 567.
16 See, eg, Trustees of the Indigenous Barristers’ Trust v Commissioner of Taxation (2002) 127 FCR 63, 72 [10] (Gyles J).
17 Royal Naval House Case (1931) 45 CLR 224, 232 (Starke J), 233 (cf Dixon J). The Royal Naval House's status as an institution was not in dispute. See also Trustees of the Indigenous Barristers’ Trust v Commissioner of Taxation (2002) 127 FCR 63, 80–7 [26]–[31] (Gyles J).
18 Stratton v Simpson (1970) 125 CLR 138, 158 (Gibbs J, Barwick CJ and Menzies J agreeing) quoting Mayor of Manchester v McAdam (Surveyor of Taxes) [1896] AC 500, 511 (Lord Macnaghten). Cf Stratton v Simpson (1970) 125 CLR 138, 145–6 (Windeyer J), 154 (Walsh J).
19 It was accepted that the Royal Naval House was ‘public’: Royal Naval House Case (1931) 45 CLR 224, 233 (Dixon J), 235 (Evatt J), 237 (McTiernan J).
20 Maughan v Federal Commissioner of Taxation (1942) 66 CLR 388, 397 (Williams J, Rich and McTiernan JJ agreeing).
21 Dal Pont, above n 13, 37 [2.30]. Although a governmental body is unlikely to be ‘benevolent’: at 37–8.
22 Hunger Project (2014) 221 FCR 302, 314 [66] (Edmonds, Pagone and Wigney JJ). See also Royal Naval House Case (1931) 45 CLR 224, 232 (cf Starke J), 233–4 (Dixon J), 235 (Evatt J); Australian Council of Social Service Inc v Commissioner of Pay-roll Tax (NSW) (1985) 1 NSWLR 567, 575 (Priestly JA).
23 Royal Naval House Case (1931) 45 CLR 224, 232 (Starke J), 233–4 (Dixon J), 235–6 (Evatt J); Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute (1990) 90 ATC 4752, 4761 (McGarvie J) (McGarvie J's conclusion and reasons were affirmed on appeal); Lemm v Federal Commissioner of Taxation (1942) 66 CLR 399, 410 (Williams J, Rich and McTiernan JJ agreeing).
24 As a result of the requirement for a ‘registered public benevolent institution’: Fringe Benefits Tax Assessment Act 1986 (Cth) (‘FBT Act’) s 57A(1); Income Tax Assessment Act 1997 (Cth) (‘ITAA97’) s 30-45(1) item 4.1.1. The ATO retains its remit to regulate compliance with a range of endorsement conditions for the various tax concessions.
25 To avoid any doubt, the definition of ‘registered public benevolent institution’ expressly requires that an entity be a ‘registered charity’: ITAA97 s995-1(1) (‘registered public benevolent institution’).
26 ATO, Income Tax and Fringe Benefits Tax: Public Benevolent Institutions, TR 2003/5, 4 June 2003.
27 Hunger Project (2014) 221 FCR 302, 314 [67] (Edmonds, Pagone and Wigney JJ).
28 ACNC, Commissioner's Interpretation Statement: The Hunger Project Case, CIS 2013/01. The ATO has also now accepted the reasoning in Hunger Project, albeit the Decision Impact Statement expressly notes that the ACNC is responsible for determining PBI status: ATO, Decision Impact Statement: Commissioner of Taxation v Hunger Project Australia, 8 August 2014.
29 ACNC, Commissioner's Interpretation Statement: The Hunger Project Case, CIS 2013/01, 6–7 [6.1]–[6.5].
30 For a more detailed discussion of the decision, see Murray, Ian and Martin, Fiona, ‘The Blossoming of Public Benevolent Institutions: From ‘Direct’ Providers to Global Networks’ (2015) 40 Alternative Law Journal 36.CrossRefGoogle Scholar
31 Minerals Council of Australia and National Native Title Council, above n 5, 11–12; Heferen et al, above n 2, 14; Agreements, Treaties and Negotiated Settlements, Submission to Treasury (Cth), Native Title, Indigenous Economic Development and Tax, November 2010, 13.
32 See, eg, Heferen et al, above n 2, 15.
33 Minerals Council of Australia, Submission to Treasury (Cth), Tax Treatment of Native Title Benefits, August 2012, 6.
34 See generally Yamatji Marlpa Aboriginal Corporation, ‘Pilbara Native Title Groups Reach Agreement with Rio Tinto’ (Media Release, 3 June 2011); Adam Levin, above n 6, 8–9, 15–16.
35 See, eg, Murray, Ian and Wright, Stephen, ‘The Taxation of Native Title Payments for Indigenous Groups and Resource Proponents: Convergence, Divergence and Reform’ (2015) 39(2) University of Western Australia Law Review 99, 107-8.Google Scholar
36 Levin, above n 6, 24–5.
37 The diagram is derived from Murray and Wright, above n 35, 108.
38 Native Title Act pt 2 div 6. As to the use of PBCs in benefits management structures, see, eg, Morgan, above n 7, 7–10.
39 Once registered under the Native Title Act, the PBC becomes known as a ‘registered native title body corporate’ (‘RNTBC’).
40 See, eg, Murray and Wright, above n 35, 107–8; Adam Levin and Fleur Lewis, ‘Tax and Native Title: Current Taxation Issues Affecting Native Title Groups and Indigenous Organisations in 2014’ (Paper presented at the Tax Institute National Resources Tax Conference, Perth, 15–17 October 2014) 37.
41 Albeit the absolute number of determinations is much higher in some jurisdictions than others: Australian Institute of Aboriginal and Torres Strait Islander Studies, Registered Native Title Bodies Corporate (RNTBC) Prescribed Bodies Corporate (PBC) Summary (17 March 2015).
42 PBC details obtained from ibid.
43 ACNC, Find a Charity (accessed 18 June 2015) <https://www.acnc.gov.au/ACNC/FindCharity/>.
44 Accordingly, the entity may ultimately be registered under the PBI sub-type.
45 ITAA97, s 30-45(1) item 4.1.1.
46 Ibid s 30-15(1) items 1, 7, 8.
47 FBT Act, s 57A(1).
48 Broadly, the cap is $30,000 per employee, based on what would otherwise have been the grossed up value of the benefits provided: ibid s 5B(1A).
49 See, eg, Dal Pont, above n 13, 148–53.
50 And, as discussed above, charities must be registered as such at the federal level in order to access federal tax concessions.
51 See, eg, ITAA97, s 50-1 item 1.1; A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 38-250, 38-255, 38-260, 38-270, 40-160.
52 ITAA97, s 30-45(1) item 4.1.4.
53 Ibid s 30-45(1) item 4.1.3
54 Ibid s 30-100(1) item 12.1.1.
55 Ibid s 30-55(1) item 6.1.1.
56 For a discussion of local government concessions for Indigenous entities see Martin, Fiona, ‘Local Government Rates Exemptions for Indigenous Organisations: The Complexities of a State-by-state System’ (2010) 14(1) Australian Indigenous Law Review 35.Google Scholar
57 Productivity Commission, ‘Contribution of the Not-for-Profit Sector’ (Research Report, 11 February 2010) 177.
58 Maughan v Federal Commissioner of Taxation (1942) 66 CLR 388, 398 (Williams J, Rich J agreeing); Federal Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204, 216–17, 220–1 (Gummow, Hayne, Heydon and Crennan JJ) (‘Word Investments’).
59 As to the construction of objects as powers, see, eg, Word Investments (2008) 236 CLR 204, 219–20 (Gummow, Hayne, Heydon and Crennan JJ).
60 The Constitution of Ngarluma Aboriginal Corporation RNTBC r 3, Office of the Registrar of Indigenous Corporations <http://register.oric.gov.au/document.aspx?concernID=104511>. For further similar examples see also the rule books available at <http://www.oric.gov.au/> for Yindjibarndi Aboriginal Corporation RNTBC, Wintawari Guruma Aboriginal Corporation RNTBC, Buurabalayji Thalanyji Aboriginal Corporation RNTBC, Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC, De Rose Hill – Ilpalka Aboriginal Corporation (RNTBC), Tjayuwara Unmuru Aboriginal Corporation RNTBC, Yankunytjatjara Native Title Aboriginal Corporation (RNTBC), Eastern Maar Aboriginal Corporation and Gunaikurnai Land & Waters Aboriginal Corporation RNTBC. The rule books for the Dunghutti Elders Council (Aboriginal Corporation) RNTBC, Antakirinja Matu-Yankunytjatjara Aboriginal Corporation (RNTBC), Far West Coast Aboriginal Corporation RNTBC, Gawler Ranges Aboriginal Corporation RNTBC, Irrwanyere Aboriginal Corporation RNTBC, Walka Wani Aboriginal Corporation RNTBC and Gunditj Mirring Traditional Owners Aboriginal Corporation RNTBC also contain a number of similarities.
61 Murray, Ian, ‘Charitable Fundraising Through Commercial Activities: The Final Word or a Pyrrhic Victory?’ (2008) 11(2) Journal of Australian Taxation 138, 156–62.Google Scholar
62 Ibid 159–62; Cullity, Maurice C, ‘The Myth of Charitable Activities’ (1990) 10 Estates & Trusts Journal 7, 7.Google Scholar
63 The examples are drawn from: (1) reports on PBC/RNTBC activities; (2) literature on the activities of Local Aboriginal Corporations; (3) rule books for the WA, NSW, SA and Vic PBCs referred to in Part IIC1; and (4) literature on the matters covered by land access native title agreements. As to (1), see, eg, Deloitte Access Economics, Review of the Roles and Functions of Native Title Organisations (March 2014) <http://www.deloitteaccesseconomics.com.au/uploads/File/DAE%20Review%20of%20Native%20Title%20Organisations%20-%20Final%20Report%20reissued.pdf>. As to (2), see, eg, Levin and Lewis, above n 40, 36–7. As to (3), see, eg, The Constitution of Ngarluma Aboriginal Corporation RNTBC r 3, Office of the Registrar of Indigenous Corporations <http://register.oric.gov.au/document.aspx?concernID=104511>. As to (4), see, eg, O’Faircheallaigh, ‘Registered Native Title Bodies Corporate’, above n 1; Levin, above n 6 16–17. Only additional sources are specifically cited in the list of activities.
64 See, eg, Northern Land Council v Commissioner of Taxes (NT) [2002] ATC 5117, 5124 (Mildren J) (‘Northern Land Council’).
65 For instance, to ensure compliance with the Aboriginal Heritage Act 1972 (WA).
66 See, eg, Northern Land Council [2002] ATC 5117, 5124 (Mildren J). For an example of the link between identity, culture and custom, see the objects considered in Maclean Shire Council v Nungera Co-operative Society Ltd (1994) 84 LGERA 139 (‘Nungera’). See also, Australian Institute of Aboriginal and Torres Strait Islander Studies, Submission Part B to Deloitte Access Economics, Native Title Organisations Review, 1 October 2013, 7.
67 Murray and Martin, above n 30, 38.
68 Lemm v Federal Commissioner of Taxation (1942) 66 CLR 399, 411 (Williams J, Rich and McTiernan JJ agreeing).
69 See generally Native Title Act, ss 56, 57, 58; Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) rr 6, 7.
70 Native Title Act, pt 2 divs 6-7; Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).
71 See also Martin, Fiona, ‘Convergence and Divergence with the Common Law: The Public Benefit Test and Charities for Indigenous Peoples’ in Harding, Matthew, O’Connell, Ann and Stewart, Miranda (eds), Not-for-Profit Law: Theoretical and Comparative Perspectives (Cambridge University Press, 2014) 159.CrossRefGoogle Scholar
72 Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297, 306 (Lord Simonds); Re Compton [1945] Ch 123, 128–9 (Lord Greene MR); Davies v Perpetual Trustee Co Ltd (1959) 59 SR (NSW) 112, 116, 118 (Privy Council).
73 See, eg, Dal Pont, above n 13, 58–9 [3.19]. This factor may be relevant if traditional laws and customs permit new members other than on the basis of kinship.
74 ACNC, Commissioner's Interpretation Statement: Indigenous Charities, CIS 2013/02, 12. In part due to Native Title Act s 62(2)(e)(i) (‘the native title claim group have, and the predecessors of those persons had, an association with the area’).
75 Martin, ‘Convergence and Divergence’, above n 71, 163–4.
76 See further, ibid 164.
77 Northern Land Council [2002] ATC 5117, 5124 (Mildren J) (traditional owners in the Northern Territory); Latimer v Commissioner of Inland Revenue [2002] 3 NZLR 195, 208 [38] (Blanchard J) (for the benefit of broad tribal groups (iwi) and kinship groups based on a common apical ancestor (hapu) groups of Maori, rather than close family (whanau) groupings). On appeal, the Commissioner did not challenge the finding that a purpose of assisting Maori to make land rights claims was charitable and it was adopted as a basis for elements of the Privy Council's reasons: Latimer v Commissioner of Inland Revenue [2004] 1 WLR 1466, 1472 [17], 1474–5 [28].
78 ACNC, Indigenous Charities, above n 74.
79 (1992) 175 CLR 1.
80 For a more detailed explanation of native title under the Native Title Act, see, eg, Commonwealth v Yarmirr (2001) 208 CLR 1, 34–9 [5]–[16] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Western Australia v Ward (2002) 213 CLR 1, 65–7 [15]–[21] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (‘Ward’).
81 See, eg, Native Title Act, s 223(1)(a); Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 447 [56], 456–7 [88]–[90] (Gleeson CJ, Gummow and Hayne JJ); Ward (2002) 213 CLR 1, 66 [17] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
82 Native Title Act, s 223(1)(b); Mabo v Queensland (No 2) (1992) 175 CLR 1, 59, 70 (Brennan J), 188 (Toohey J); Ward (2002) 213 CLR 1, 85–86 [63]–[64] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
83 ACNC, Indigenous Charities, above n 74, 14; Strelein, Lisa, Compromised Jurisprudence: Native Title Cases Since Mabo (Aboriginal Studies Press, 2009) 141–4.Google Scholar
84 ACNC, Indigenous Charities, above n 74, 14–15. Indeed, as noted above n 73, acquisition of native title rights and observance of laws and customs need not necessarily occur by way of biological descent.
85 Ibid 15.
86 Ibid.
87 Re Mills (deceased) (1981) 27 SASR 200, 207–8 (Walters J), 213 (Wells J), 214 (Sangster J) (although the person seeking to establish the trust was related to all four couples – his great grandparents).
88 Davies v Perpetual Trustee Co Ltd (1959) 59 SR (NSW) 112. The ACNC notes that the apical ancestors of a native title claim may not have been related and so may have formed a sufficient section of the public themselves. However, this characterisation may also be possible for Re Mills and, especially, for Davies.
89 Black, Cf Warren, ‘Transferring Native Title to a Body Corporate under the Native Title Act 1993 (Cth) – Can CGT Arise?’ (2000) 3(2) Journal of Australian Taxation 155, 157Google Scholar; 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, 700–1.Google Scholar
90 See, eg, Kibby v Registrar of Titles [1999] 1 VR 861, [50]–[51] (Mandie J); Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1982] 1 WLR 522, 525 (Lawton J); ATO, ‘The New Tax System: The Meaning of Entity Carrying on an Enterprise for the Purposes of Entitlement to an Australian Business Number’, MT 2006/1, 13 December 2006, 9 [47].
91 See, eg, Rubibi Community v Western Australia (No 5) [2005] FCA 1025 (29 July 2005) [365]–[369] (Merkel J).
92 See, eg, Plan B Trustees Ltd v Parker (No 2) [2013] WASC 216 (30 May 2013) (‘Plan B’) [116] (Edelman J).
93 Charities Act, s 9. The requirement for receiving, holding or managing a benefit might be problematic where, as is typical, the PBC or Local Aboriginal Corporation only indirectly receives such benefits.
94 Charities Act, s 6(4) provides that ‘in determining whether the section of the general public to whose benefit the purpose is directed is a sufficient section, have regard to all relevant matters, including comparing: (a) the numerical size of that section of the general public; and (b) the numerical size of the section of the general public to whom the purpose is relevant’. Purposes that relate to addressing Indigenous disadvantage may then require a comparison between the numerical size of the native title group to the size of the group of all Indigenous Australians.
95 ACNC, Indigenous Charities, above n 74, 2–3.
96 Charities Act, s 5.
97 See, eg, The Hunger Project Australia v Federal Commissioner of Taxation [2013] FCA 693 (17 July 2013) [105] Perram J.
98 See, eg, Lisa Strelein, ‘Taxation of Native Title Agreements’ (Native Title Research Monograph No 1/2008, AIATSIS, May 2008) 33; Levin, above n 6, 19. As to the effectiveness of the practice, see, eg, Northern Land Council [2002] ATC 5117, 5123 (Mildren J) (by admission of the Commissioner); Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 139 FLR 236, 253 (Mildren J) (charities case – ‘Aboriginal people in central Australia’).
99 See n 60 above; Balanggarra Aboriginal Corporation RNTBC’s, Bunuba Dawangarri Aboriginal Corporation RNTBC's and Pila Nguru (Aboriginal Corporation) RNTBC's objects are expressed for the benefit of the relevant native title holders (or a subset): Balanggarra Aboriginal Corporation RNTBC Rule Book r 2.1; Rule Book of the Bunuba Dawangarri Aboriginal Corporation RNTBC r 3; The Rule Book of Pila Nguru (Aboriginal Corporation) RNTBC r 3; The Rule Book of Gunaikurnai Land & Waters Aboriginal Corporation RNTBC r 3 (all obtained from ORIC on 18 June 2015: <http://register.oric.gov.au/>).
100 Re Koettgen's Will Trusts [1954] 1 Ch 252, 257–8 (Upjohn J); Public Trustee v Young (1980) 24 SASR 407, 414–15 (Zelling J, King CJ and Matheson J agreeing).
101 Re Hodgson's School (1878) 3 App Cas 857, 871 (Lord Selborne); Caffoor v Commissioner of Income Tax (Colombo) [1961] AC 584, 603–4 (Lord Radcliffe); Public Trustee v Young (1980) 24 SASR 407, 414 (Zelling J, King CJ and Matheson J agreeing).
102 Caffoor v Commissioner of Income Tax (Colombo) [1961] AC 584, 603–4 (Lord Radcliffe); Re Mills (deceased) (1981) 27 SASR 200, 209 (Walters J). See generally, Dal Pont, above n 13, 54 [3.10].
103 Picarda, Hubert, The Law and Practice Relating to Charities (Bloomsbury Professional, 4th ed, 2010) 80.Google Scholar
104 (1970) 125 CLR 138, 148–9 (Windeyer J), 159–60 (Barwick CJ, Gibbs J and Menzies J agreeing).
105 See n 67 and accompanying text.
106 Community welfare projects and services can clearly have the relief of PBI needs as an immediate object; and general compliance and administration activities would be construed as ancillary to an entity's overarching purpose.
107 See n 64 and accompanying text.
108 ACNC, Indigenous Charities, above n 74, 1.
109 ATO, Public Benevolent Institutions, above n 26, 14–15 [58]–[60].
110 See, eg, Re Matthew (deceased) [1951] VLR 226, 232 (O’Bryan J); Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120, 125 (Bignold J); Northern Land Council [2002] ATC 5117, 5118 (Martin CJ), 5123 (Mildren J), 5134 (Thomas J); Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168, 199–200 [90] (Kirby J). Legislative intervention includes the Native Title Act, the preamble stating that ‘Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society’.
111 COAG, above n 3.
112 (1994) 84 LGERA 139, 144 (Handley JA).
113 See Part IIIC2.
114 See Part IIIC1.
115 See Part IIIC3
116 Aboriginal Hostels Ltd v Darwin City Council (1985) 33 NTR 1, 16–18 (Nader J) (charity).
117 Re Bryning [1976] VR 100, 101 (Lush J) (charitable trust).
118 Dareton Local Aboriginal Land Council v Wentworth Shire Council (1995) 89 LGERA 120, 127–8 (Bignold J).
119 The assertion being that any purposes that are not the relief of PBI needs must be incidental or ancillary to the relief of PBI needs: Nungera (1994) 84 LGERA 139, 143 (Handley JA, Priestley and Sheller JJA agreeing); Bodalla Aboriginal Housing Company Ltd v Eurobodalla Shire Council [2011] NSWLEC 146 (26 August 2011) [67] (Preston CJ); Federal Commissioner of Taxation v Launceston Legacy (1987) 15 FCR 527, 542 (Northrop J).
120 Commissioner of Pay-roll Tax (Vic) v Cairnmillar Institute [1990] ATC 4752, 4767 (McGarvie J), citing R v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League Inc (1979) 143 CLR 190 (see 207–8 (Barwick CJ), 213 (Gibbs J), 233, 235–6 (cf Mason J, Jacobs J agreeing), 239 (cf Murphy J); ATO, Public Benevolent Institutions, above n 26, 26 [108], 29 [119]–[120].
121 ACNC, Factsheet: Public Benevolent Institutions and the ACNC <http://www.acnc.gov.au/ACNC/Pblctns/Factsheets/FS_PBI/ACNC/FTS/Fact_PBI.aspx> (emphasis removed). See also ACNC, Commissioner's Interpretation Statement: The Hunger Project Case, CIS 2013/01, 7 [7.1].
122 ATO, Public Benevolent Institutions, above n 26, 8–9 [37].
123 Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363, 372–3 (Angel J) (‘Tangentyere’).
124 Nungera (1994) 84 LGERA 139, 143 (Handley JA, Priestley and Sheller JJA agreeing); Tangentyere (1990) 99 FLR 363, 372–3 (Angel J); Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48, 58 (Stein J).
125 In addition to note 66, see also Tangentyere (1990) 99 FLR 363, 372 (Angel J).
126 For instance, in Gumbangerrii Aboriginal Corporation v Nambucca Council (1996) 131 FLR 115, the Gumbangerrii Aboriginal Corporation's objects of promoting Aboriginal culture and society and promoting sporting activities for Aboriginal persons were found to be incidental or ancillary to its purpose of fostering, advancing, improving and maintaining the general well-being and welfare of Aboriginal persons: 122 (Stein J).
127 Nungera (1994) 84 LGERA 139, 141 (emphasis in original).
128 Ibid 143 (Handley JA, Priestley and Sheller JJA agreeing).
129 As to whether it may be a charitable purpose, see Martin, Fiona, ‘Prescribed Bodies Corporate Under the Native Title Act 1993 (Cth): Can They Be Exempt from Income Tax as Charitable Trusts?’ (2007) 30 University of New South Wales Law Journal 713.Google Scholar
130 Northern Land Council [2002] ATC 5117, 5134.
131 Ibid 5133–4 (Thomas J).
132 (1996) 90 LGERA 48, 59 (Stein J).
133 Plan B [2013] WASC 216 (30 May 2013) [112] (Edelman J) citing Western Australia v Ward (2002) 213 CLR 1, 64–5 [14] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) and Yanner v Eaton (1999) 201 CLR 351, 373 [38] (Gleeson CJ, Gaudron, Kirby and Hayne JJ).
134 Ibid [113] (Edelman J) (in the context of whether funds had been applied in accordance with a purportedly charitable trust).
135 See, eg, Commonwealth, Aboriginal Land Rights Commission, Second Report (1974) 2; Martin, ‘Prescribed Bodies Corporate’, above n 129, 723.
136 Northern Land Council [2002] ATC 5117, 5126 (Mildren J).
137 Nungera (1994) 84 LGERA 139, 143.
138 As to the use of charities cases and reasoning on characterising purpose in a PBI context, see, eg Nungera (1994) 84 LGERA 139, 142–4 (Handley JA, Priestley and Sheller JJA agreeing); Northern Land Council [2002] ATC 5117, 5121 (Mildren J) (referring favourably to the approach in Nungera).
139 COAG, above n 3.
140 See, eg, 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); Andrew Forrest, ‘The Forrest Review: Creating Parity’ (Review, 2014) chs 5 and 7.
141 See generally, Dal Pont, above n 13, 39–40 [2.34].
142 See, eg, Tasmanian Electronic Commerce Centre Pty Ltd v Federal Commissioner of Taxation (2005) 142 FCR 371; Federal Commissioner of Taxation v Triton Foundation (2005) 147 FCR 362 (even though assistance was provided to a small group of selected innovators).
143 Canterbury Development Corporation v Charities Commission [2010] 2 NZLR 707, 720 [66]–[68], 723 [84] (Ronald Young J) (start-up funding as well as advice and general support). Cf Chamber of Commerce and Industry of Western Australia (Inc) v Commissioner of State Revenue [2012] WASAT 146 [98] (Chaney P) (significant benefits to member organisations permitted).
144 Re Queenstown Lakes Community Housing Trust [2011] 3 NZLR 502, 525 [67] (MacKenzie J); ATO, Income Tax and Fringe Benefits Tax: Charities, Taxation Ruling TR 2011/4, 12 October 2011, 62–3 [251]–[256].
145 Charity Commission for England and Wales, The Promotion of Community Capacity Building, RR5, November 2000, 7–9. The guidance contains a useful discussion of ‘safe’ and more risky activities.
146 [2010] 2 NZLR 707, 719 [61], 724 [88] (Ronald Young J).
147 Charity Commission for England and Wales, Promotion of Urban and Rural Regeneration, RR2, March 1999, 8. A purpose of promoting urban or rural regeneration in an area of social and economic deprivation is comparable to a PBI purpose of relieving Indigenous disadvantage.
148 (2002) 127 FCR 63.
149 Ibid 67.
150 Ibid 79 [22].
151 Cf Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1998) 101 LGERA 10, 17 (Bignold J).
152 Northern Land Council [2002] ATC 5117, 5125 (Mildren J).
153 (2014) 221 FCR 302.
154 For further discussion of the link between fundraising and ultimate relief of PBI needs, see Murray and Martin, above n 30, 37–8.
155 ATO, Public Benevolent Institutions, above n 26, 24 [100].
156 Ibid 28–9 [118]–[119]. See also Repromed Pty Ltd v Lucas (2000) 76 SASR 575, 587 [42]–[43].
157 Arthur Sinodinos, Assistant Treasurer, ‘Integrity restored to Australia's tax system’ (Media Release, 14 December 2013).
158 See, eg, Northern Land Council [2002] ATC 5117, 5122 (Mildren J, Martin CJ agreeing). See also Lemm v Federal Commissioner of Taxation (1942) 66 CLR 399, 411 (Williams J, Rich and McTiernan JJ agreeing).
159 Treasury (Cth), Tax Expenditures Statement 2014 (January 2015) 7, 74. The amount does not include meal entertainment or entertainment leasing benefits, which can be provided by a range of entities and were estimated to amount to $465 million in 2014/15.
160 Ibid 28.
161 Commonwealth of Australia, Budget Paper No. 2: Budget Measures 2015–16 (2015) 22–3. The Commonwealth proposal is to implement an additional cap. The Not-for-profit Sector Tax Concession Working Group recommended including these benefits within existing caps: Linda Lavarch et al, ‘Fairer, Simpler and More Effective Tax Concessions for the Not-for-profit Sector’ (Final Report, Not-for-profit Sector Tax Concession Working Group, May 2013) 42.
162 Linda Lavarch et al, above n 161, 38–41.
163 Heferen et al, above n 2, 33.
164 Ibid.
165 Bradbury, Macklin and Dreyfus, above n 10.
166 Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth), Report No 126 (2015) 312–13.
167 Heferen et al, above n 2, 25, 28–9.
168 Ibid 9, 15, 25.
169 Ibid 25. Although difficult to reconcile with not-for-profit status, it also appears that an ICDC is to have a limited ability to make non-purpose, direct payments to individuals: at 27.
170 Ibid 9. See also at 15, 21.
171 Ibid 15, 22–3.
172 Ibid 5.
173 Ibid 5, 15.
174 Ibid 10, 14.
175 Ibid 15. Made in the context of charity status and therefore of relevance to PBIs which are effectively a sub-set of charities.
176 Hunger Project (2014) 221 FCR 302.
177 Murray, Ian, ‘Looking for ‘Direct Assistance’ in the Phrase ‘Public Benevolent Institution’: Time to Abandon the Search’ (2012) 35 University of New South Wales Law Journal 103Google Scholar; Murray and Martin, above n 30, 38–9.
178 Charity Commission for England and Wales, Community Capacity Building, above n 145, 5.
179 Committee for Economic Development of Australia, Addressing Entrenched Disadvantage in Australia (CEDA, 2015) 63–80.Google Scholar
180 At least, predominantly. See n 169 above.
181 Heferen et al, above n 2, 27.
182 Ibid 25, 38.
183 Income Tax Assessment Act 1936 (Cth) pt III div 7A.
184 Note the concerns expressed by the Not-for-profit Sector Tax Concession Working Group about extending DGR status to charities for the advancement of education through child care, or primary or secondary education, in relation to those activities, given the private benefits provided by the entities: Linda Lavarch et al, above n 161, 24.
185 Carney, Terry and Hanks, Peter, ‘Taxation Treatment of Charities: Distributional Consequences for the Welfare State’ in Krever, Richard and Kewley, Gretchen (eds), Charities and Philanthropic Institutions: Reforming the Tax Subsidy and Regulatory Regimes (Australian Tax Research Foundation, 1991) 49, 51, 77.Google Scholar See also McGregor-Lowndes, Myles, Newton, Cameron and Marsden, Stephen, ‘Did Tax Incentives Play Any Part in Increased Giving?’ (2006) 41 Australian Journal of Social Issues 493, 495CrossRefGoogle Scholar; O’Connell, Ann, ‘The Tax Position of Charities in Australia – Why Does it Have To Be So Complicated?’ (2008) 37 Australian Tax Review 17, 30.Google Scholar See also Sheppard, Ian, Fitzgerald, Robert and Gonski, David, Report of the Inquiry into the Definition of Charities and Related Organisations (Canberra, 2001), 244.Google Scholar
186 Murray, Ian, ‘Accumulation in Charitable Trusts: Australian Statutory Perpetuities Rules’ (2014) 8(2) Journal of Equity 163.Google Scholar
187 Heferen et al, above n 2, 26.
188 Ibid 30.
189 Ibid 27–9.
190 See, eg, Dal Pont, above n 13, 148–53 [7.10]–[7.14]. For instance, the ACT has no general exemption from land tax for charities: Land Tax Act 2004 (ACT); nor does SA for rates: Local Government Act 1999 (SA).
191 Ibid.
192 See, eg, Taxation Legislation Amendment Act (No 2) 2015 (WA); Revenue and Other Legislation Amendment Bill 2015 (NT). In April 2015, the ACT also consulted with selected stakeholders on reforms to charity concessions: Email from Kathy Goth, Director, Economics and Financial Analysis Branch, Treasury (ACT), to Ian Murray, 10 June 2015.
193 See the discussion of FBT concessions for PBIs in Treasury (Cth), ‘Re:think’ (Tax Discussion Paper, March 2015) 124–5.