FEDERAL COURT OF AUSTRALIA
Equality Australia Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2024] FCAFC 115
ORDERS
Applicant | ||
AND: | COMMISSIONER OF THE AUSTRALIAN CHARITIES AND NOT-FOR-PROFITS COMMISSION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 Equality Australia Ltd (Equality Australia) is a company limited by guarantee which by its constitution seeks to improve the wellbeing and circumstances of gay, lesbian, bisexual, transgender, and intersex people, and people questioning their sexual identity or preference (LGBTIQ+ people), and their families and children. Since 4 January 2016, Equality Australia has been registered as a charity under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act). Specifically, Equality Australia has been registered as a charity with a subtype “advancing public debate”: see ACNC Act ss 25-5(2)(b), (5) item 12 and Charities Act 2013 (Cth) s 12(1)(l).
2 On 14 August 2020, Equality Australia applied to the Commissioner of the Australian Charities and Not-for-profits Commission to be additionally registered with the subtype “Public benevolent institution”: see ACNC Act s 25-5(5) item 14. A delegate of the Commissioner refused that application on 14 December 2020. On 6 April 2021, the Commissioner disallowed Equality Australia’s objection to the delegate’s refusal.
3 Equality Australia then applied to the Administrative Appeals Tribunal for review, seeking an order that the Commissioner’s decision be varied so as to allow Equality Australia’s objection and to register it as a public benevolent institution. On 30 June 2023, the Tribunal (Deputy President McCabe and Dr Bygrave, Professor O’Connell dissenting) affirmed the Commissioner’s decision.
4 Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), Equality Australia appeals to this Court from the Tribunal’s decision on a question of law.
5 The Commissioner has filed a notice of contention in the appeal pursuant to r 33.21 of the Federal Court Rules 2011 (Cth). By that notice, the Commissioner contends that the Tribunal’s decision should be affirmed on grounds other than those relied on by the Tribunal.
The task of this Court
6 Equality Australia’s appeal under s 44 of the AAT Act is in the original jurisdiction of the Court and is confined to questions of law. As such, the appeal is a statutory form of judicial review: see generally Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [15] (Gaudron, Gummow, Hayne and Callinan JJ) referring to the corresponding Victorian legislation. It is no part of this Court’s function to review the Tribunal’s decision on pure questions of fact. Accordingly, it is important to be precise about the questions of law on which Equality Australia founds its appeal.
7 Equality Australia’s notice of appeal framed three questions for the Court’s consideration, namely –
(1) whether, on the facts found by the Tribunal, Equality Australia was entitled between 1 July 2020 and 6 April 2021 to be registered as a public benevolent institution;
(2) whether the Tribunal misconstrued the expression “public benevolent institution” in item 14 of s 25-5(5) of the ACNC Act as involving a test of sufficient proximity or directness between the beneficial activities of an entity and the benevolent ends it seeks to achieve, or in holding that Equality Australia did not satisfy such a test because it was organised to advocate, educate and campaign for law reform and social change; and
(3) whether the Tribunal erred in law in its consideration of whether Equality Australia was organised or conducted for, or promotes, the relief of distress experienced by LGBTIQ+ people in Australia.
8 These three questions were supported by three grounds, which complemented the questions raised by the notice of appeal.
9 At the outset of the hearing, the Court drew attention to the High Court’s decision in Comptroller-General of Customs v Pharm-a-Care Laboratories Pty Ltd [2020] HCA 2; 270 CLR 494 (Pharm-a-Care) at [41] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ) for the purpose of raising two questions. The first question was whether, if it be assumed that “public benevolent institution” is a phrase that bears its ordinary meaning, that ordinary meaning is a question of fact. The second question was whether it was also a question of fact whether Equality Australia is a public benevolent institution, having regard to the facts as otherwise found by the Tribunal.
History of the expression “public benevolent institution”
10 To understand the genesis of these questions, it is important to appreciate something about the history of the expression “public benevolent institution”. As we will explain in more detail, the expression “public benevolent institution” has been considered in a series of authoritative decisions, dealing with a range of statutory contexts.
11 In Chesterman v Federal Commissioner of Taxation (1923) 32 CLR 362 (Chesterman HCA), the High Court was called upon to construe an exemption from the payment of estate duty for funds “devised and bequeathed … for religious, scientific, charitable or public educational purposes”. The question for the Court was whether the word “charitable” bore its legal or technical meaning, or some non-technical “popular sense”: see Chesterman HCA at 375 (Knox CJ). A majority of the Court held that the term should not be given its legal or technical meaning: see Chesterman HCA at 384–5 (Isaacs J), 398 (Rich J), 399–400 (Starke J). The Privy Council allowed an appeal from this decision, holding that the word “charitable” should be given its legal meaning: see Chesterman v Federal Commissioner of Taxation (1925) 37 CLR 317 at 319–21 (Lord Wrenbury for the Board).
12 As French CJ, Gummow, Hayne, Crennan and Bell JJ subsequently observed in Aid/Watch Inc v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539 (Aid/Watch) at [16], the legislative response to the Privy Council’s decision was to amend the relevant provision in the estate duty legislation, so as to replace the concept of “charitable … purposes” with an exemption for gifts to “a … public benevolent institution in Australia”: Estate Duty Assessment Act 1928 (Cth) s 5(b). The expression that was seized upon, “public benevolent institution”, was already employed in State legislation: see Perpetual Trustee Co Ltd v Federal Commissioner of Taxation (1931) 45 CLR 224 (Perpetual Trustee) at 237 (McTiernan J), citing Local Government Act 1919 (NSW) s 132(1)(d). In Aid/Watch, the majority stated at [16] that this amendment was effected, however, “not to vindicate the Commissioner’s construction but to assist taxpayers by the addition of favourable treatment for any entity which was a ‘public benevolent institution in Australia’”. The result was the adoption of an expression with “no technical legal sense”, which “was to be understood in accordance with common usage”: see Aid/Watch at [16], citing Perpetual Trustee at 231–2 (Starke J).
13 Perpetual Trustee was a case stated for the opinion of the Full Court of the High Court that presented the first occasion for the Court to consider the meaning of “public benevolent institution” in the Commonwealth estate duty legislation. Starke J held at 232 that the expression had to be understood “in the sense in which it is commonly used in the English language”, which was as “an institution organized for the relief of poverty, sickness, destitution, or helplessness”. Dixon J expressed a view at 233 that a public benevolent institution is one “promoted [or] conducted for the relief of poverty, distress, suffering or misfortune”. At 235, Evatt J said that what public benevolent institutions have in common is that “they give relief freely to those who are in need of it and who are unable to care for themselves”. McTiernan J dissented, preferring a broader understanding of the statutory expression, which is evident from his Honour’s application of the expression to the facts of the case stated.
14 In Public Trustee (NSW) v Federal Commissioner of Taxation (1934) 51 CLR 75, Dixon J reiterated at 103 that the expression “‘public benevolent institution’ … is to be treated as a compound expression referring to institutions” that satisfy the descriptions expressed by Starke J, Dixon J and Evatt J in Perpetual Trustee. The High Court likewise affirmed the authority of Perpetual Trustee in two further cases, decided in 1942: Maughan v Federal Commissioner of Taxation (1942) 66 CLR 388 at 397 (Williams J, Rich J agreeing at 395, McTiernan J agreeing at 395) and Lemm v Federal Commissioner of Taxation (1942) 66 CLR 399 at 410–11 (Williams J, Rich J agreeing at 407, McTiernan J agreeing at 407). As we have already noted, the majority in Aid/Watch approved at [16] Starke J’s holding in Perpetual Trustee that the expression “public benevolent institution” had no technical legal sense and must be understood in accordance with common usage.
15 In Federal Commissioner of Taxation v The Hunger Project Australia [2014] FCAFC 69; 221 FCR 302 (Hunger Project (Full Court)), Edmonds, Pagone and Wigney JJ accepted at [27] that, for the purposes of construing s 57A(1) of the Fringe Benefits Tax Assessment Act 1986 (Cth), in the absence of statutory definition “public benevolent institution” carries its ordinary meaning. At the hearing of this appeal, senior counsel for each of the parties accepted that the expression bears its ordinary meaning in the provision of the ACNC Act that arises for consideration in this case.
Question of law
16 This common starting point engages the reasoning of the High Court in Pharm-a-Care. Pharm-a-Care was an appeal to the High Court from a decision of the Full Court of this Court. The decision of the Full Court was given in the exercise of original jurisdiction under s 44 of the AAT Act on an appeal from the Tribunal on a question of law. The Tribunal had determined that certain preparations were classifiable under particular subheadings within Chapter 30 of Section VI of Schedule 3 to the Customs Tariff Act 1995 (Cth). Note 1(a) to Chapter 30 provided that Chapter 30 did not “cover … [f]oods or beverages … such as … food supplements”. The Tribunal reasoned that the preparations were excluded from Chapter 30 by Note 1(a) only if they answered the relevant description of “[f]oods”, with “food supplements” working simply as an example of this central term. The Tribunal also concluded that the preparations in question did not answer the description of either “[f]oods” or “food supplements” according to the ordinary meanings of those expressions. Accordingly, the Tribunal considered that Note 1(a) did not prevent the preparations in question from being classifiable under Chapter 30.
17 The Full Court held that the Tribunal had not erred in law when it concluded that the preparations in question did not answer the description either of “[f]oods” or of “food supplements”. The Full Court also upheld the Tribunal’s construction of Note 1(a).
18 On appeal to the High Court, the Comptroller-General submitted that the Tribunal and the Full Court had erred in their construction of Note 1(a). The Comptroller-General submitted, specifically, that if goods answered the description of “food supplements”, then Note 1(a) excluded them from Chapter 30 without them also needing to answer the description of “[f]oods”. This submission was based on considerations flowing from the status of Schedule 3 as a scheme that implemented aspects of an international convention that was authenticated in English and French, and equally authoritative in each language.
19 While the High Court dismissed the appeal, the Court accepted the Comptroller-General’s submissions as to the construction of Note 1(a) based on these features of Schedule 3. The Court held at [39] that the Tribunal was wrong to construe Note 1(a) as excluding the preparations from the coverage of Chapter 30 only if they answered the relevant description of “[f]oods”. The Tribunal had thus erred in law in construing Note 1(a): Pharm-a-Care at [39]–[40]. On the correct construction of Note 1(a), the Court held at [41], the preparations were excluded from the coverage of Chapter 30 only if they answered the relevant description of “food supplements”. The expression “food supplements” carried the meaning “signified by the common understanding of that expression”: Pharm-a-Care at [41].
20 For the Tribunal’s error of law with respect to Note 1(a) properly to result in an order of the Full Court setting aside the Tribunal’s decision, it was necessary for the Tribunal’s error of law to have been material: Pharm-a-Care at [40]. The Tribunal’s finding that the preparations were not “food supplements” was held at [42] to be an independent finding of fact, and was sufficient to take the preparations outside the scope of Note 1(a), even on its proper construction. In reaching this conclusion, the High Court made important observations about the distinction between questions of fact and questions of law. The Court held at [41] –
Within the bounds of reasonableness, the application or non-application of the common understanding of an expression used in a statute to facts that have been found is itself a question of fact.
21 Because the Tribunal’s conclusion that the relevant preparations were not “food supplements” was a finding of fact, the Comptroller-General was not able to establish any error of law on the Tribunal’s part simply by establishing that the Tribunal’s conclusion was wrong.
22 What, then, will amount to an error of law in such an exercise? The High Court held at [44] –
Though there is no error of law merely in making a wrong finding of fact, there is no doubt that a finding of fact can be erroneous in law if the finding is reached through the application of a wrong legal test.
(Citations omitted.)
23 In support of this proposition, the Court cited the decision of this Court in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 (Sharp) at 12 (Davies and Beazley JJ). After stating that it is primarily a question of fact, not of law, to say what the meaning of an ordinary English word or phrase is, Davies and Beazley JJ held in that case –
If the decision-maker adopts a wrong approach to the task, the decision may be set aside and the matter remitted for reconsideration. … This may occur if the decision-maker has not applied the well-understood ordinary meaning of a term but has given to it a meaning or qualification of his or her own or if … the decision-maker adopts a meaning contrary to that which has been established by legal decisions.
24 Senior counsel for Equality Australia and the Commissioner both relied upon this statement of principle.
25 The reference in Sharp to a decision-maker having “not applied the well-understood ordinary meaning of a term”, but (instead) given it “a meaning or qualification of his or her own”, must be read in the context of the earlier acceptance that the meaning of such a term is a question of fact. If the decision-maker eschews the “ordinary meaning”, treating the relevant expression as having some specialised meaning when on a proper construction of the legislation it does not, an error of law may well result. However, “[w]ithin the bounds of reasonableness” (as it was put in Pharm-a-Care at [41]), a dispute as to whether or not the “meaning or qualification” adopted by the decision-maker is consistent with the “ordinary meaning” gives rise only to a question of fact. We note that the formulation adopted in Pharm-a-Care at [41] was supported by reference at footnote (58) to a line of authorities, including Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [24]–[25], in which it was accepted that an error of law would arise if “the true and only reasonable conclusion contradicts the determination”. The Court also cited Hope v Bathurst City Council (1980) 144 CLR 1, where at 7 Mason J referred to the special considerations that arise when the issue is whether the facts found fall within words of a statute that are used according to their common understanding. In such a case, within the bounds of reasonableness, the question is one of fact.
26 Returning to the case at hand, the common position that “public benevolent institution” bears its ordinary meaning has the following consequences. First, deciding what that ordinary meaning is involves answering a question of fact. Secondly, deciding whether Equality Australia is a “public benevolent institution” within that ordinary meaning also involves answering a question of fact. As a result, it is no part of this Court’s function to substitute its own view of whether Equality Australia is a public benevolent institution for that of the Tribunal.
27 However, this Court may set aside the Tribunal’s decision if it is affected by an error of law. The authorities we have canvassed establish that a decision-maker in making a finding of fact can make an error of law where the decision-maker transgresses the bounds of reasonableness, applies the wrong legal test to reach a factual conclusion, gives an expression which has an ordinary meaning a meaning or qualification of his or her own (instead of identifying and applying the ordinary meaning), or adopts a meaning contrary to that established by court authority.
28 The three questions extracted at [7] above from Equality Australia’s notice of appeal must be viewed in light of these principles. The first question in substance asks whether, on the facts found by the Tribunal, Equality Australia was a public benevolent institution. The authorities we have identified establish that this is essentially a question of fact, and thus a question that falls outside an appeal on a question of law.
29 The second question asks whether the Tribunal misconstrued the statutory expression as involving a test of sufficient proximity or directness, or alternatively in applying that test. Now, if the argument is as to whether a test of sufficient proximity or directness does or does not form part of the ordinary meaning of the statutory expression, then it concerns the meaning of an ordinary English phrase and (within the bounds of reasonableness) raises only a question of fact. A question of law arises if Equality Australia’s submission is that the Tribunal derived its test of sufficient proximity from somewhere other than its understanding of the ordinary meaning, or construed the phrase inconsistently with established authority.
30 The third question asks whether the Tribunal erred in its consideration of whether Equality Australia was organised or conducted for, or promotes, the relief of distress experienced by LGBTIQ+ people. The supporting ground in the notice of appeal explains this question really to relate to the Tribunal’s process of fact-finding. This question, however, was not independently developed in submissions.
31 At the hearing, counsel for Equality Australia refined the questions of law posed by the first two questions in the notice of appeal in the following way. As we understood Equality Australia’s submissions, the first question was refined to ask whether the Tribunal, on the primary facts found, ought necessarily to have found that Equality Australia was a public benevolent institution, such that its determination exceeded the bounds of reasonableness. The second question was refined to ask expressly whether the Tribunal misapprehended or misconstrued the expression “public benevolent institution” by introducing a qualification of its own. As refined, these questions do amount to questions of law that this Court may decide.
The Tribunal’s decision
The reasons of the majority
32 The opinion of the Tribunal is that of the majority: AAT Act s 42(1). The majority said that the outcome of the matter turned on the following questions, which assisted in what was “ultimately a process of characterisation” –
(a) whether LGBTIQ+ people are susceptible to, or experience, distress, such as to be persons in need of benevolence; and
(b) whether Equality Australia is organised or conducted for, or promotes, the relief of that distress.
33 With respect to the first question, the majority concluded that LGBTIQ+ people do experience distress such that they are capable of being regarded as persons in need of benevolence. On the second question, however, the Tribunal concluded that Equality Australia was not organised or conducted for, and did not promote, the relief of that distress in the required way.
34 The majority commenced its consideration by setting out the statutory framework, and explaining the history of the expression “public benevolent institution” and how it has been interpreted by courts and the Tribunal.
35 Addressing the first question posed at the outset, the majority summarised and assessed the evidence of two academic experts that had been adduced by Equality Australia. Because of the approach we will take to the Commissioner’s notice of contention, it is not necessary to set out that evidence in detail. In general terms, however, the experts explained that LGBTIQ+ people experience higher levels of mental illness, suicidality, homelessness, and drug and alcohol abuse than the general population. The experts opined, based on research, that these forms of distress were often the result of stigmatisation or exclusion, and that Equality Australia helps to mitigate this distress by seeking to reshape the social, policy, and legislative environment in ways that promote acceptance and inclusion.
36 On the basis of this evidence, the majority concluded that there was a basis for accepting that the distress experienced by LGBTIQ+ people is caused by structural discrimination that manifests in a range of discriminatory practices and experiences. The majority also concluded that not all LGBTIQ+ people experience this “minority stress”.
37 Turning to the second question that it posed at the outset, the majority stated at [36] –
Answering that question requires us to focus on the nature and purpose of [Equality Australia]. As a practical matter, that involves an examination of [Equality Australia]’s aims, how it is organised and what it actually does.
38 The majority went on to explain that Equality Australia was established in the context of the same-sex marriage debate, with the objective of promoting change to Australian law to achieve marriage rights for same-sex couples, and to eliminate discrimination on grounds of sexual orientation.
39 The majority continued that after same-sex marriage was legalised, Equality Australia was given its current name and amended its constitution to reflect its new, broader focus. The majority found that cl 3 of Equality Australia’s constitution reflected that new focus. Clause 3 reads as follows –
The purpose of the company is to improve the wellbeing and circumstances of LGBTI People in Australia and their families and children by:
(a) relieving their distress and disadvantage;
(b) reducing the prevalence, and relieving the effects, of depression, suicide, anxiety, bullying and homelessness that they experience;
(c) reducing the stigma, discrimination and homophobia they experience;
(d) advancing and promoting equality and inclusion; and
(e) enhancing their actual, and sense of, safety, security and acceptance.
40 Having accepted that this clause encapsulates Equality Australia’s purpose, the majority emphasised that it needed “to know more about the organisation, its aims and its activities” before deciding whether “it is properly characterised as a public benevolent institution”.
41 The majority then summarised and reviewed the evidence before the Tribunal that cast light on Equality Australia’s activities. Amongst this evidence was a description provided by Equality Australia to the Commissioner in connection with its application for registration on 14 August 2020. As extracted in the statement of reasons at [40], that description was –
We provide intervention and support (e.g. referrals, legal and other information, positive messages, online/in person events and briefings) to LGBTIQ+ people to alleviate discrimination, distress and disadvantage and generate positivity and connection; we support LGBTIQ+ community organisations to meet the immediate needs of LGBTIQ+ people suffering disadvantage by developing and sharing resources and information on key issues affecting LGBTIQ+ people and engaging in training and capacity building; we convene and resource gatherings of LGBTIQ+ community organisations to build knowledge and share information; we prepare research reports and submissions to assist LGBTIQ+ community organisations to alleviate the distress and disadvantage suffered by LGBTIQ+ people; we gather data on the nature and extent of the distress, disadvantage and inequality experienced by LGBTIQ+ people in order to develop strategies and coordinate responses to address these experiences and conditions; we use our research and legal knowledge to inform and educate government and parliamentarians about programmatic, policy and legal reform to alleviate the discrimination, disadvantage and distress experienced by LGBTIQ+ people and promote inclusion and equality; we build awareness and support for inclusion and equality among industry and mainstream community organisations and the broader community; we convene online and in person events to provide support to LGBTIQ+ people and ease the distress and disadvantage they face; and we inform and educate LGBTIQ+ people and the broader community about current issues and the impact of discrimination, disadvantage and inequality.
42 The majority also summarised the background and evidence of Equality Australia’s chief executive officer, Ms Anna Brown OAM. Ms Brown’s evidence referred to Equality Australia’s mission statement, which provides: “We create positive legal and social change to ensure LGBTIQ+ people are treated with dignity and respect.” Ms Brown’s evidence also identified the staff employed by Equality Australia, who comprised: an operations coordinator with a background in advocacy; an engagement director; a digital campaigner; a legal director whose role is to undertake research and submission writing, liaise with government, and “supporting individuals or developing strategic litigation opportunities”; a development and partnerships manager; a part-time financial controller; and a strategic advisor. Ms Brown also noted that Equality Australia could engage other staff as required, and had a pool of volunteers.
43 Ms Brown explained that Equality Australia had undertaken projects in a number of thematic areas, including religious discrimination, the legal recognition of gender, ending unnecessary medical interventions on intersex people, and collection of data on LGBTIQ+ populations in the census. In abridged terms, Ms Brown summarised the work of Equality Australia since 2018 as follows –
(a) devising legal, policy or other solutions to issues;
(b) developing forums to discuss current issues of concern;
(c) supporting individuals preparing for or undertaking litigation on LGBTIQ+ policy issues, through its own expertise, liaising with media, and making referrals to support services;
(d) co-designing and implementing strategies to address issues;
(e) helping the broader community understand LGBTIQ+ issues, and persuading the community to support LGBTIQ+ people;
(f) preparing research reports, submissions and briefing materials on current issues; and
(g) conducting surveys and gathering data to inform future action.
44 Ms Brown also stated that Equality Australia provides “direct support” to LGBTIQ+ people, including by providing reference materials, support with parliamentary inquiries, and referrals to support services.
45 In light of this evidence, as well as further evidence from Ms Brown regarding the break-down of time spent on various activities and the scope of the organisation, the majority concluded at [69] –
The evidence before us clearly established [Equality Australia] focused on advocacy (especially advocacy of law reform and social change) as well as policy development at the relevant time. But the oral evidence also established the other activities and projects referred to in [Equality Australia]’s strategic plan … and some of the other documents were still at a very early stage of development. They were nascent, or aspirational.
46 The majority further found at [72] that the staffing profile of Equality Australia “was clearly geared towards advocacy and policy development work”.
47 The critical findings of the majority concerning Equality Australia’s activities were at [79], where the majority relevantly said –
In summary, we are satisfied the evidence, when viewed as a whole, confirms [Equality Australia] was focused on advocacy in furtherance of its goal of changing laws and social practices that were injurious to LGBTQI+ persons. In doing so, it was plainly motivated by a desire to address the distress these laws and practices caused to many members of that community. [Equality Australia] engaged in information gathering, networking activities and outreach to that end, and it played a modest role in the relevant period in staging events and hosting interactions with that end in mind. We are not satisfied it routinely provides support directly to individuals or groups beyond providing referrals, information exchanges and opportunities for connection except where that support was incidental to other activities that were directed to achievement of its primary mission. Moreover, [Equality Australia] did not have access to the financial or human resources or expertise required to play a wider role beyond that which we have identified.
48 The next stage in the majority’s reasoning was to engage in a process of characterisation. The majority reiterated (at [80]) its finding that LGBTIQ+ people can be seen as persons experiencing distress caused by, amongst other things, structural discrimination in the form of discriminatory laws, policies and practices. Further, the majority confirmed that Equality Australia was organised to address that distress through a program of advocacy, education, and campaigning. The majority said that while Equality Australia may have engaged in other activities that did not amount to advocacy, those activities were typically incidental and were not sufficiently extensive to affect the majority’s finding as to Equality Australia’s purpose.
49 The majority clarified that it accepted the evidence suggesting that structural discrimination can result in distress for LGBTIQ+ people. At [81], the majority added the following –
We also accept law reform (for example, achieving marriage equality under the law) may, of itself, relieve distress of LGBTQI+ persons – both because it removes direct disadvantage occasioned by the discriminatory law or practice, and because reform destigmatizes and includes LGBTQI+ persons.
50 From there, the majority noted that the expression “public benevolent institution” is undefined and lacks settled dimensions — such that no individual activity is necessarily determinative. Rather, the majority noted at [84], “a holistic analysis of the purpose and activities of the organisation” is required, which makes it “necessary to establish a sufficiency of connection between the means employed and the benevolent ends”.
51 The majority acknowledged that an organisation need not be “directly involved in the provision of relief or aid”, in the sense that it needs a “presence on the ground”. Still, the majority insisted at [86] that there must be “a sufficiency of connection between the activities of the entity and the benevolent ends it seeks to achieve” for the entity to be a public benevolent institution –
At some point, even well intentioned and ultimately beneficial activities might not be sufficiently proximate to the benevolent ends. The relief provided will simply be too indirect.
52 At [88], the majority expressed the crux of its reasoning in the following way –
The fact an entity’s activities might inure to the benefit of the target group is not inevitably enough for it be regarded as a public benevolent institution, even though one can identify a logical connection between the activities and the ends. An entity that is organised to advocate for reform and change is (at least in this instance) too far removed from the traditional concepts of benevolence, even allowing for the evolution that has occurred in our understanding of that term. In our view, [Equality Australia] has not established that, during the relevant period, there was a sufficiency of connection that justified a finding it was entitled to be registered as a charity with the subtype public benevolent institution.
53 Accordingly, the majority concluded that the Commissioner’s decision should be affirmed.
The reasons of Professor O’Connell
54 We refer briefly to the dissenting opinion of Professor O’Connell. After conducting her own review of the statutory context, authorities and evidence, Professor O’Connell reached the following overarching conclusions –
(a) the LGBTIQ+ community is in need of benevolence; and
(b) Equality Australia supports the LGBTIQ+ community by seeking to alleviate the distress experienced by members of the community, in the ways explained by Ms Brown.
55 Professor O’Connell reasoned at [156] that the required process of characterisation “invites the decision-maker to stand back, review the stated purpose and activities of the organisation, and make a broad evaluative judgment as to that organisation’s essential nature”. Professor O’Connell stated that this evaluation “ultimately involves forming an impression”, and the best that a decision-maker can do is describe the basis of the impression. Referring to a previous decision of the Tribunal, Professor O’Connell emphasised the approach taken in that decision, whereby “the modus operandi of the organisation – while not irrelevant – was less important than the classically benevolent ends for which the organisation was established, and for which it was clearly working”.
56 Professor O’Connell concluded at [159] that Equality Australia was entitled to be registered as a public benevolent institution.
The submissions of the parties in the Court
Equality Australia’s submissions
57 Equality Australia submitted that the Tribunal’s determination that Equality Australia was not a public benevolent institution rested on an incorrect construction of the statutory expression, or an incorrect application of that expression to the facts as found.
58 In Equality Australia’s submission, the Tribunal erred by considering that the statutory expression “public benevolent institution” imports a “directness” criterion, according to which an institution’s beneficial activities must be sufficiently “proximate’ to its benevolent ends, and not “too indirect”. Equality Australia submitted that discerning this criterion in the expression “public benevolent institution” was inconsistent with the decision of the Court in Hunger Project (Full Court).
59 Equality Australia identified, and embraced, several key findings of the Tribunal in support of its case. Equality Australia drew particular attention to the Tribunal’s findings that –
(a) LGBTIQ+ people experience distress caused by, amongst other things, structural discrimination in the form of discriminatory laws, policies and practices;
(b) Equality Australia was organised to address that distress through a program of advocacy, education and campaigning to achieve changes in laws, administrative policies and social practices that are injurious to LGBTIQ+ people; and
(c) law reform of the kind engaged in by Equality Australia is of itself capable of relieving the distress of LGBTIQ+ people, both because it removes direct disadvantages occasioned by discriminatory laws and practices and because it destigmatises.
60 Equality Australia emphasised that the Tribunal was correct to say that the expression “public benevolent institution” has no technical legal meaning, and must be given its ordinary meaning. Drawing on the reasons of Edmonds, Pagone and Wigney JJ in Hunger Project (Full Court) at [38], Equality Australia submitted that past judicial statements as to the expression’s legal meaning can often assist, but the common understanding of the expression’s meaning may change over time. Indeed, Equality Australia acknowledged that the Tribunal had correctly appreciated these principles.
61 Equality Australia also submitted that the expression “public benevolent institution” must be construed in light of its statutory context, which included the whole of the ACNC Act and the Income Tax Assessment Act 1997 (Cth) (ITAA 1997). Equality Australia submitted that this statutory context should inform whatever choices arise in the construction of “public benevolent institution”. In particular, Equality Australia drew attention to the fact that a “registered public benevolent institution” is a “deductible gift recipient” that falls within a broader category of “welfare and rights” recipients under div 30 of the ITAA 1997. In Equality Australia’s submission, this favoured a broader rather than narrower construction of the phrase “public benevolent institution”. Equality Australia did not explain how this submission could be reconciled with its acceptance that “public benevolent institution” is to be given its ordinary meaning.
62 Equality Australia submitted that there was error apparent in the following two propositions in the reasons of the majority in the Tribunal. First, that for an entity to be a public benevolent institution there must be a sufficiency of connection between the activities of the entity and the benevolent ends it seeks to achieve, such that the activities are sufficiently proximate and not too indirect in relation to those ends. Secondly, that an entity that is organised to advocate for reform and change is (at least in this instance) too far removed from traditional concepts of benevolence to be a public benevolent institution, even allowing for evolution in the understanding of that term.
63 Equality Australia submitted that the first of these propositions was “squarely rejected” by the Court in Hunger Project (Full Court). In Equality Australia’s submission, the Tribunal erred insofar as its language of “sufficient connection” was intended to suggest that Equality Australia carried the burden of proving that its activities in fact relieved a need worthy of benevolence. Equality Australia urged the Court to hold that, when deciding whether an entity is a public benevolent institution, it is not necessary to require proof of a link between the activities of the entity and the provision of relief. Further, Equality Australia submitted that it conducted itself benevolently towards those recognisably in need of benevolence, and so did not simply promote social welfare in the community generally.
64 In the alternative, Equality Australia also submitted that, to the extent that there is a requirement of “directness” or “proximity” embedded within the notion of a “public benevolent institution”, the Tribunal’s conclusion that Equality Australia failed to meet that requirement could not be sustained in view of its other findings, which we have set out at [59] above. Equality Australia submitted that it had, at all material times, provided or acted to provide direct relief to its beneficiary class, being LGBTIQ+ people.
65 As for the second of the impugned propositions, Equality Australia submitted that advocacy may be a mechanism for the delivery of benevolent relief. Equality Australia relied on a statement of Edmonds, Pagone and Wigney JJ that a public benevolent institution “conducts itself in a public way towards those in need of benevolence, however that exercise of benevolence may be manifested”: Hunger Project (Full Court) at [66], citing Australian Council of Social Service Inc v Commissioner of Pay-Roll Tax (1985) 1 NSWLR 567 (ACOSS (Appeal)) at 575 (Priestley JA, Mahoney JA agreeing at 569). Especially given that the statutory expression must be approached “through a contemporary lens”, the submission continued, there is no reason why the fact that relief is administered by advancing changes to laws and policies should be an impediment to recognition as a “public benevolent institution”. In this respect, Equality Australia referred to authorities noting that changes to the law can alleviate the suffering LGBTIQ+ people may otherwise experience due to discrimination and disadvantage. Equality Australia also submitted that the relief provided must be calibrated to the causes of the distress, and that advocacy was an appropriate means of relief in this case, given that the relevant distress is caused by laws and practices injurious to LGBTIQ+ people.
66 Equality Australia also made submissions about the correctness of Thawley J’s decision in Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2021] FCA 435 (Australians for Indigenous Constitutional Recognition). It submitted that, as an interlocutory costs judgment, Thawley J’s decision carried limited weight, and did not finally decide the issue of the applicant’s status as a public benevolent institution. Equality Australia submitted that Thawley J erred by introducing a requirement of a “sufficiently direct” connection between an entity’s activities and its purposes, and by suggesting that the activities of the applicant in that case might not satisfy such a requirement.
The Commissioner’s submissions
67 The Commissioner submitted that the Tribunal’s decision should be affirmed for four main reasons.
68 First, the Commissioner submitted that Equality Australia’s advocacy and policy development activities do not provide direct relief (or sufficiently direct relief), nor is there a sufficient connection between its activities and the benevolent ends it pursues. The Commissioner submitted that, in determining whether an entity is a public benevolent institution, it is necessary to examine the entity by reference to its constitution, control, funding and functions: see Ambulance Service of New South Wales v Deputy Commissioner of Taxation [2002] FCA 1023; 50 ATR 496 (Ambulance Service (First Instance)) at [81] (Allsop J).
69 The Commissioner submitted that a public benevolent institution must give relief to those suffering poverty, sickness, destitution, helplessness, misfortune or distress — whether it gives such relief directly itself, or does so through related entities that it funds. In support of this submission, the Commissioner referred to Hunger Project (Full Court) at [51]. The Commissioner submitted that Hunger Project (Full Court) does not stand for the proposition that there is no requirement for a sufficiently direct connection between an entity’s activities and the provision of relief to persons in distress. Rather, that case decided that this requirement can be met where the entity in question funds associated entities which provide that relief. The Commissioner also submitted that advocacy activities have never previously been recognised as sufficient for status as a public benevolent institution.
70 Secondly, the Commissioner submitted that Equality Australia’s activities were directed towards achieving law reform and social change for LGBTIQ+ people generally, and in this respect were not sufficiently targeted to relieving the distress of such persons experiencing poverty, sickness, destitution, helplessness, misfortune or distress. The Commissioner drew attention to the Tribunal’s findings that not all LGBTIQ+ people experience distress, that structural discrimination against LGBTIQ+ people “can” result in distress, and that law reform “may” of itself relieve that distress (by removing direct disadvantages imposed by discrimination, and because reform destigmatises and includes LGBTIQ+ people). The Commissioner submitted that the Tribunal misdirected itself by failing to ask whether Equality Australia gave relief in a direct and immediate way to individuals actually suffering distress, rather than to a group containing people “susceptible” to distress.
71 Thirdly, the Commissioner submitted that Equality Australia’s activities were inherently preventative in nature. The Commissioner submitted that the authorities established that this does not suffice to render an entity a public benevolent institution.
72 Fourthly, the Commissioner submitted that deciding that Equality Australia is a public benevolent institution would require the Court to adjudicate an essentially political question: whether the law and policy changes for which Equality Australia advocates are for the public benefit. The Commissioner submitted that this is not a subject for the judgment of courts, and was properly the preserve of the legislature and subject to political accountability. The Commissioner sought to distinguish the question whether Equality Australia is a charity — which could be answered by deciding whether Equality Australia made a contribution to political debate, thereby advancing the interests of the community as a whole — from the question decided by the Tribunal. In the Commissioner’s submission, deciding whether Equality Australia is a public benevolent institution requires the decision-maker to decide whether the achievement of the policy changes for which it advocates would be relevantly beneficial. This is a question that requires balancing opposing interests, which the Commissioner submitted is something a court cannot do.
Consideration
Authorities on the meaning of “public benevolent institution”
73 As it appears in a range of statutes, the expression “public benevolent institution” has been analysed and applied in a well-known series of court authorities. Many of the authorities have been surveyed in previous decisions: see, eg, Ambulance Service (First Instance) at [3]–[76] (Allsop J); Ambulance Service of New South Wales v Commissioner of Taxation [2003] FCAFC 161; 130 FCR 477 at [14]–[27] (Hill, Goldberg and Conti JJ); Hunger Project Australia v Federal Commissioner of Taxation [2013] FCA 693; 94 ATR 855 (Hunger Project (First Instance)) at [50]–[90] (Perram J). Indeed, the majority in the Tribunal in this case likewise undertook a thorough survey of the relevant authorities.
74 To resolve the questions of law raised on this appeal, it is not necessary to chart the metes and bounds of the expression “public benevolent institution”. We have already referred to some of the key High Court authorities that deal with those issues. The questions of law for this Court involve only certain aspects of the expression’s meaning. The account of the authorities that follows is directed to resolving those questions of law. We observe, though, that many of the authorities involve a court making findings of fact, either at first instance or on an appeal by way of rehearing, but they illustrate the relevant principles and inform the meaning of the expression established by court authority.
75 In Australian Council of Social Service Inc v Commissioner of Pay-Roll Tax (NSW) (1982) 13 ATR 290 (ACOSS (First Instance)), an issue before Rath J was whether the Australian Council of Social Service was a public benevolent institution for the purposes of pay-roll tax. Rath J found at 295 that the Council’s purposes were “[t]o serve the Australian people by undertaking activities which promote their social well-being” and “[t]o be especially concerned with the well-being of disadvantaged and vulnerable individuals and groups, and to promote their well-being through socially just policies and programmes”.
76 Rath J also found at 296 that the Council’s activities were directed towards providing indirect aid for the relief of poverty or distress by performing advisory, informative, research and advocacy functions. The Council’s activities fell into four broad classes, which were as follows –
(a) providing services to member organisations (such as research assistance, information on government policies, and an advocacy service involving representations and deputations to government);
(b) conducting research into areas of concern for the Council;
(c) producing publications; and
(d) conducting policy studies, and advocating for the improvement of circumstances that result in poverty and distress.
77 After expressly assuming that the Council was organised to achieve “aid and comfort” that could be described as the relief of poverty, Rath J turned at 299–300 to consider whether the Council, “as distinct from the body administering the aid”, was a public benevolent institution. Rath J concluded that a body which is separately organised for the promotion of the relief of poverty generally did not fall within the ordinary meaning of the expression “public benevolent institution”. Since this was the character of the Council’s objects and activities, his Honour found at 301 that it was not a public benevolent institution.
78 Priestley JA delivered the majority judgment in the Court of Appeal: see ACOSS (Appeal) at 569 (Mahoney JA), 576 (Priestley JA). In upholding the conclusion that the Council was not a public benevolent institution, Priestley JA emphasised at 574 Rath J’s finding that “[t]he relief of poverty is of paramount concern in all the activities [of the Council] but this relief is sought to be achieved in the promotion of social welfare in the community generally”. Priestley JA then said at 575 –
To me, the word “benevolent” in the composite phrase “public benevolent institution” carries with it the idea of benevolence exercised towards persons in need of benevolence, however manifested. Benevolence in this sense seems to me to be quite a different concept from benevolence exercised at large and for the benefit of the community as a whole even if such benevolence results in relief of or reduction in poverty and distress. Thus it seems to me that “public benevolent institution” includes an institution which in a public way conducts itself benevolently towards those who are recognizably in need of benevolence but excludes an institution, which although concerned, in an abstract sense, with the relief of poverty and distress, manifests that concern by promotion of social welfare in the community generally.
79 Because the Council’s activities could be characterised as indirectly aimed at the relief of poverty and distress by the promotion of social welfare in the community generally, Priestley JA concluded at 576 that the Council was not a public benevolent institution. Unlike Street CJ, who was alone in the Court of Appeal on this point, Priestley JA did not base this conclusion on the premise that only organisations that relieve distress “directly” are public benevolent institutions.
80 In Hunger Project (First Instance), Perram J was called upon to decide whether an organisation called “The Hunger Project Australia” was a public benevolent institution for the purposes of fringe benefits tax. Under its memorandum of association, The Hunger Project Australia had the following “exclusive object”, to which all other objects were subordinate –
The relief of poverty, sickness, suffering, distress, destitution and helplessness with a particular emphasis on directly aiding and developing those suffering from chronic and persistent hunger in certified developing countries as approved by the Australian Minister for Foreign Affairs from time to time.
The Hunger Project Australia will work towards the sustainable end of hunger by identifying what is missing in achieving he [sic] goal of ending hunger and creating strategic initiates [sic] to provide it.
81 Perram J found at [42] that The Hunger Project Australia’s activities fell within 11 broad categories, including “fundraising activities in Australia”, “participation at the global level in a number of strategic decision-making processes”, “remission of donated funds to program countries”, “arranging reports and recommendations on activities in program countries”, and “conducting [a] seed capital monitoring program … in Malawi”. Perram J characterised “fundraising activities in Australia” as “by far the dominant activity”, and conducting the seed capital monitoring program as “an isolated instance”. Significantly, it was only this last activity that Perram J considered to involve the direct performance of charitable activities. On this basis, Perram J stated at [44] that his Honour did “not find … that the applicant [was] substantially engaged in the direct provision of charitable works”. It was predominantly a fundraising organisation.
82 To understand the significance of what Perram J had to say about public benevolent institutions, it is necessary to understand the dispute that had arisen between The Hunger Project Australia and the Federal Commissioner of Taxation. At [48], Perram J extracted a passage from the decision refusing The Hunger Project Australia’s objection to the decision not to endorse it as a public benevolent institution for the purposes of fringe benefits tax. That passage read as follows –
It is accepted that the project has a principal aim to provide relief from hunger however its activities indicate that this is achieved by the provision of funding for independent overseas projects which is not the direct provision of relief for the purpose of the term public benevolent institution. The organisations and projects supported by the project provide the direct benevolent relief to the people who are experiencing chronic hunger.
83 Perram J then stated at [49] that “[t]he present question [was] whether this is correct”. In other words, what Perram J had to say about the relevance of directness has to be understood while keeping in mind that the immediate question was whether The Hunger Project Australia could be a public benevolent institution despite its activities being primarily to “support” organisations and projects that provide direct benevolent relief, rather than to dispense that relief itself.
84 In that context, Perram J surveyed the authorities construing the phrase “public benevolent institution”, with a particular focus on what those authorities had to say about a supposed requirement of “directness”. As part of his Honour’s assessment of the reasons of Street CJ in ACOSS (Appeal), Perram J said at [74] –
The fact that a person is identified as the subject of benevolence does not imply that the benevolence should be provided directly. I may direct the trustees under my will to benefit the homeless and the destitute but I should be surprised if this meant that the trustees had to do so themselves.
85 As the context would suggest in any event, this statement confirms that Perram J was using the concept of “directness” to refer to the immediate provision of relief by a person to the objects of its benevolence, without any intermediary.
86 On the basis of his survey of the authorities, Perram J said at [90] that his Honour was not bound in any particular direction on the question of directness in this sense. Drawing an analogy with Federal Commissioner of Taxation v Word Investments Ltd [2008] HCA 55; 236 CLR 204 (Word Investments), Perram J then held at [126] that a body could be a public benevolent institution even though it addressed its objects through intermediaries, rather than directly. Accordingly, his Honour concluded that The Hunger Project Australia was a public benevolent institution.
87 Importantly, Perram J noted at [126] that the decision of the New South Wales Court of Appeal in ACOSS (Appeal) was, as a decision of an intermediate appellate court, binding authority for the proposition that, for a body to be a public benevolent institution, its benevolent objects must be more than merely abstract. His Honour concluded at [126] that The Hunger Project Australia’s objects were “not abstract in that sense” and were “sufficiently concrete”. The thrust of the reasoning supporting this conclusion was expressed at [126] to be that The Hunger Project Australia’s “principal object of relieving hunger is achieved through its close relationships with The Hunger Project entities in program countries”. In other words, there was a sufficiently firm connection between the benevolent aim of relieving hunger, and the means adopted to achieve that aim.
88 On appeal, the Full Court affirmed Perram J’s conclusion that The Hunger Project Australia was a public benevolent institution: Hunger Project (Full Court) at [3] (Edmonds, Pagone and Wigney JJ). The factual centre of the case was captured by the Full Court at [1] as follows –
The activities of [The Hunger Project Australia] are mainly directed at raising funds which are then disseminated to Hunger Project members in the developing world. It is those entities that directly perform charitable acts to relieve hunger.
89 The Full Court said at [27] that the expression “public benevolent institution” does not have any technical legal meaning, and so must be given its ordinary meaning. The crucial reasoning that led the Full Court to the conclusion that The Hunger Project Australia was a public benevolent institution came at [38]–[39]. Those paragraphs are important, and so we will set them out in full –
Whilst past judicial statements concerning the ordinary meaning of a word or expression can often assist in divining the meaning of the word or expression, the common understanding of the meaning of an expression may change over time depending on the particular expression in question. When the question is whether a particular institution is a public benevolent institution, the answer depends on the common or ordinary understanding of the expression at the relevant time. The question is not to be approached as a legal question to be dealt with by the mechanical application of past authority, irrespective of the present current understanding of the expression in the currently spoken English language: Ambulance Service (NSW) v Deputy Commissioner of Taxation (2002) 50 ATR 496 at [40]-[42]
…
There is much to be said for the proposition that the common understanding or usage of the expression in question here has expanded or changed since Perpetual Trustee was decided; ACOSS at 575C-E (per Priestley JA); Ambulance Service (NSW) v Deputy Commissioner of Taxation (2003) 130 FCR 477 at [44]. It is unlikely that global aid networks comprising separate fundraising entities such as the Hunger Project were prevalent when Perpetual Trustee was decided. Even if it was the case that the common understanding of a public benevolent institution in 1931 involved the institution directly dispensing relief, we can see no reason why that common understanding may not have changed over time to encompass organisations that may be structured in ways that separate fund raising entities from entities that dispense relief or aid using those funds.
90 These paragraphs illustrate the point that Hunger Project (Full Court) involved a situation in which undoubted relief against hunger was being provided, and the key question was whether the identity of the person actually delivering that relief to the people who needed it was determinative of whether The Hunger Project Australia was a public benevolent institution.
91 Further, the Full Court made observations about the significance of Rath J’s decision in ACOSS (First Instance). After expressing doubt that Rath J was correct to discern a requirement of directness (in the sense we have explained) in the statutory expression, the Full Court said at [51] –
In our opinion Rath J’s observations concerning the requirement that a public benevolent institution must itself dispense relief to the needy must be read in light of the particular facts his Honour was considering, namely an institution that provided general advice, information, research and advocacy services. Such services did not amount to dispensing relief to the needy. His Honour was not considering whether an organisation which raised funds for use by particular public benevolent institutions could not itself be said to be organised “in a direct and immediate sense” for the relief of poverty, sickness, destitution or helplessness.
92 As for Word Investments, the Full Court noted at [64] that Perram J had simply relied on this case to illustrate the point that “an approach to determining whether a particular institution is a public benevolent institution which focused on the structure of the organisation, as opposed to the substance of its objectives and activities, would be erroneous”.
93 The decision of Thawley J in Australians for Indigenous Constitutional Recognition was given in a proceeding under s 170-15 of the ACNC Act that sought a variation of an objection decision of the Commissioner. In issue was whether the applicant in that case, Australians for Indigenous Constitutional Recognition Ltd, was a public benevolent institution for the purposes of item 14 of the table in s 25-5(5) of the ACNC Act. In that context, Thawley J was called upon to deal with an interlocutory application for an order under r 40.51(1) of the Rules specifying the maximum costs as between party and party that could be recovered in that proceeding. One of the bases on which the applicant supported this application was that the Court’s consideration of the issues in the proceeding would provide guidance on the proper construction of the phrase “public benevolent institution”.
94 Thawley J expressed a view at [15] that the meaning of “public benevolent institution” was perhaps not as uncertain under the current law as the applicant in that case would have had it. In Thawley J’s assessment at [16] –
… the history and meaning of “public benevolent institution” was thoroughly examined by Allsop J in Ambulance Service of NSW v Deputy Commissioner of Taxation (2002) 50 ATR 496. A [public benevolent institution] is an organisation that promotes “the relief of poverty, suffering, distress or misfortune”: Perpetual Trustee Co Ltd v Commissioner of Taxation (1931) 45 CLR 224 at 234 (Dixon J); see also 232 (Starke J), 235-236 (Evatt J). An organisation that is concerned with the relief of poverty and distress in an “abstract sense” or “indirect sense as a promoting body” is not a [public benevolent institution]: Australian Council of Social Service Inc v Commissioner of Pay-roll Tax (1985) 1 NSWLR 567 at 575 (ACOSS). ACOSS was an organisation that sought to promote the relief of poverty and distress through advisory, informative, research and advocacy functions related to social welfare, but did not itself directly provide relief to those in need. The NSW Court of Appeal held that the appellant was not a [public benevolent institution]. In Commissioner of Taxation v The Hunger Project Australia (2014) 221 FCR 302, the Full Court accepted that “an institution that provided general advice, information, research and advocacy services … did not amount to dispensing relief to the needy”: at [51].
95 With respect to the applicant in that case, Thawley J observed at [25]–[26] –
The applicant is concerned with advancing education, promoting reconciliation, mutual respect and tolerance between groups of individuals in Australia; and advancing public debate, for the purpose of achieving self-determination and recognition in the Australian Constitution for Indigenous Australians. The money which the applicant hopes to raise by securing registration as a [public benevolent institution] would be directed to such matters as securing constitutional recognition for Indigenous Australians. It would not be distributed directly (or sufficiently directly) to Indigenous Australians. It would be used with the hope of ultimately relieving distress by seeking to secure constitutional recognition or by providing Indigenous Australians with a voice in their affairs through constitutional change. It may be accepted that relief does not have to be provided through money in order for an entity to be a [public benevolent institution]. Entities which, for example, provide relief to the needy in the form of food or accommodation would be capable of being public benevolent institutions. However, there comes a point where an entity can be seen to be pursuing, for beneficial purposes, social, political or legal change through increasing awareness, debate and other activities, rather than providing direct (or sufficiently direct) relief to those intended ultimately to benefit from the entity’s pursuits.
The applicant has a difficult case for falling within the meaning of “public benevolent institution”. That is not to say that its objects are not beneficial. The applicant’s purposes have been accepted by the respondent as charitable in advancing social or public welfare. A “public benevolent institution” is a charitable institution of a particular kind. The more abstract and less direct an institution’s activities are to the relief of poverty, sickness, destitution, helplessness or distress, the less likely the entity is to be regarded as a [public benevolent institution]. Accepting that a contemporary understanding of the meaning of the phrase would need to be brought to bear, it seems to me that the applicant has a difficult case for being regarded as falling within it.
Equality Australia’s questions of law
96 We will commence by addressing the second question of law raised by Equality Australia.
The second question — did the Tribunal misapprehend or misconstrue the expression “public benevolent institution” by introducing a qualification of its own?
97 In its refined formulation, Equality Australia’s second question of law is logically anterior to its first. That is because deciding whether it was reasonably open to the Tribunal to conclude that Equality Australia was not a public benevolent institution requires us to have some regard to the contours of the statutory expression.
98 The majority in the Tribunal did not err by misapprehending or misconstruing the expression “public benevolent institution” by introducing a qualification of its own. The qualification that Equality Australia identified and impugned was a requirement of sufficient proximity, or a direct connection, between an entity’s activities and its benevolent ends.
99 As we have already noted, Equality Australia submitted such a criterion was “squarely rejected” in Hunger Project (Full Court). We do not accept this submission. That decision addressed “directness” in an entirely different sense. As appears from the reasons of Perram J in Hunger Project (First Instance) at [48], The Hunger Project Australia had the “principal aim” of relieving hunger, which it achieved “by the provision of funding for independent overseas projects”, where “[t]he organisations and projects supported … provide the direct benevolent relief”. In other words, The Hunger Project Australia provided benevolent relief indirectly, because the funds it raised were passed on to an intermediary before being deployed to relieve hunger. In this way, the connection between the organisation’s aims and benevolent activities was established. The Full Court at [64] endorsed Perram J’s conclusion based on Word Investments that –
an approach to determining whether a particular institution is a public benevolent institution which focused on the structure of the organisation, as opposed to the substance of its objectives and activities, would be erroneous.
(Emphasis added.)
100 Senior counsel for Equality Australia took issue, in particular, with paragraphs [84] and [88] of the majority’s reasons in the Tribunal. We have set out the relevant passages at [50]–[52] above. Senior counsel submitted that these paragraphs articulated an incorrect test because it is not necessary to establish “some sort of sufficiency of connection” between the entity’s ends and the means it employs. Senior counsel submitted that the relevant question “is a question of the purpose of the entity, and whether that entity’s purposes are public benevolent purposes”. Senior counsel continued that unless the purposes are completely inapposite, illegal or against public policy, if the activities are “apt to achieve the purposes”, then that ends the inquiry.
101 Framed in this way, Equality Australia’s submissions appeared to accept that it is necessary for there to be a connection between the ends pursued by an entity and its activities. Without a connection between the ends pursued and the means adopted, it is difficult to characterise an entity’s activities as “apt to achieve the purposes”. Nor does the qualifier “sufficient” affect this fundamental analysis. At paragraph [88], the majority in the Tribunal distinguished between a mere “logical connection” between an entity’s activities and its ends, and a “sufficiency of connection”. In context, this statement simply draws attention to the fact that whether activities are apt to achieve benevolent purposes is a question of fact and degree. It does not superimpose any criterion additional to the requirement that senior counsel for Equality Australia accepted to exist.
102 The reasons of Dixon J in Public Trustee (NSW) illuminate the question further. As his Honour said at 103–4 –
The description “public benevolent institution” has received an interpretation by [the High] Court (Perpetual Trustee Co. v. Federal Commissioner of Taxation). It is to be treated as a compound expression referring to institutions “organized for the relief of poverty, sickness, destitution, or helplessness” (per Starke J., at p. 232). The phrase I used was “the relief of poverty, distress, suffering or misfortune” (p. 233). Evatt J. said (at pp. 235, 236): — “Such bodies vary greatly in scope and character. But they have one thing in common: they give relief freely to those who are in need of it and who are unable to care for themselves. Those who receive aid or comfort in this way are the poor, the sick, the aged, and the young. Their disability or distress arouses pity, and the institutions are designed to give them protection. They are very numerous — ‘the nobler a soul is the more objects of compassion it hath’ — and they have come to be known as ‘benevolent institutions.’” McTiernan J. dissented on the ground that this was too narrow a meaning.
103 In the respective formulations of Starke J, Dixon J, and Evatt J in Perpetual Trustee, a public benevolent institution is an institution “organized for the relief of poverty”, “promoted [or] conducted for the relief of … distress”, or one “designed to give … protection” to those suffering distress that “give[s] relief freely to those who are in need of it”. Built in to each of these formulations is the idea that public benevolent institutions pursue particular aims, by means that bear an appropriate relationship to those aims. For this reason, the requirement of the majority in the Tribunal that there be a sufficient connection between an entity’s activities and its objects was not a qualification of the Tribunal’s own.
104 In any event, aside from referring to Hunger Project (Full Court) and its claimed rejection of the criterion of sufficient connection, Equality Australia did not identify any persuasive reason to conclude that a requirement of a sufficient connection is an impermissible qualification on the ordinary meaning of the statutory expression. In proceeding on the understanding that “sufficient proximity” was required between the activities of the organisation and relief from distress, the majority in the Tribunal was giving effect to its understanding of the ordinary meaning of “public benevolent institution”. It was not treating the ordinary meaning as irrelevant or as supplying only part of the test. Nor, in our view, was the majority giving the phrase “public benevolent institution” a meaning so clearly at odds with its generally accepted meaning as to transgress the “bounds of reasonableness”. For this reason, Equality Australia has not demonstrated that the majority relevantly gave the expression “a meaning or qualification of its own” so as to err in law.
105 For the same reason, to the extent that the question of law that arises from the Tribunal’s references to proximity is whether (reverting to Sharp) the majority gave to the expression “public benevolent institution” a meaning “contrary to that which has been established by legal decisions”, we would give the same answer. This was perhaps the real gravamen of the submission of Equality Australia, which we have addressed above and which we reject.
106 Equality Australia has not, therefore, demonstrated any error of law with respect to its refined second question.
The first question — on the facts it found, ought the Tribunal necessarily to have found that Equality Australia was a public benevolent institution?
107 Having regard to our conclusions on the second question, Equality Australia’s first question can be dealt with briefly.
108 The starting point in answering this question is the acceptance of senior counsel for Equality Australia of the majority’s finding at [79] –
In summary, we are satisfied the evidence, when viewed as a whole, confirms [Equality Australia] was focused on advocacy in furtherance of its goal of changing laws and social practices that were injurious to LGBTQI+ persons.
109 Senior counsel for Equality Australia also drew attention to, and relied upon, the following finding made by the majority in the Tribunal at [80] –
We have made findings of fact that (a) LBGBTQI+ persons are capable of being regarded as persons experiencing distress that arouse feelings of compassion and benevolence as a result of minority stress caused by, amongst other things, structural discrimination in the form of discriminatory laws, policies and practices; and (b) [Equality Australia] was organised to address that distress through a program of advocacy (especially legal advocacy), education and campaigning to achieve changes in those laws, social practices and administrative policies.
110 At [81], the majority also accepted that –
law reform (for example, achieving marriage equality under the law) may, of itself, relieve distress of LGBTQI+ persons – both because it removes direct disadvantage occasioned by the discriminatory law or practice, and because reform destigmatizes and includes LGBTQI+ persons.
111 Equality Australia submitted that, even if the majority were correct about the requirement for a sufficient connection between an entity’s activities and its objects, it followed necessarily on the majority’s findings that Equality Australia satisfied that test.
112 The majority’s findings, however, are best characterised as follows. First, the majority accepted that LGBTIQ+ people are persons in relevant distress, which may be relieved by acts of benevolence. Secondly, the majority found that Equality Australia’s purpose was to address that distress by particular means — being, in short, advocacy. Thirdly, the majority found that the means selected were directed to achieving law reform. Fourthly, the majority found that this law reform “may”, in turn, relieve the distress of LGBTIQ+ people.
113 To reason that, having made these findings, the majority was bound to conclude that Equality Australia is a public benevolent institution would be to do away with the majority’s understanding of the ordinary meaning of that expression as involving a requirement of sufficiency of connection between ends and means.
114 At [86], the majority focused its attention on the relationship between the activities of an entity and the ultimate provision of relief. On the unchallenged findings of the majority, Equality Australia’s activities substantially involved advocating for law reform. On the majority’s findings, that advocacy is connected with the relief of distress in so far as it achieves law reform. Similarly, law reform “may” relieve the distress of LGBTIQ+ people, but how likely it is to do so is a question of fact for the Tribunal.
115 Ultimately, the majority’s factual findings do not foreclose the question whether there is a sufficient connection between the activities of Equality Australia and the relief of distress experienced by LGBTIQ+ people. The majority certainly recognised a connection — perhaps one it would call a “logical connection” — between those activities and the relief of distress. But, as the majority reasoned, recognising a connection of that kind does not lead inevitably to the conclusion that Equality Australia’s activities were “sufficiently” connected with the relief of distress. At least on the face of it, that remained a question of fact and degree to be decided by the Tribunal on its view of all the circumstances.
116 At [87]–[88], the majority referred to the decision of Thawley J in Australians for Indigenous Constitutional Recognition, and discerned in his Honour’s reasons similar principles to those the majority considered applicable. Taking issue with the majority’s reliance on [25] of Thawley J’s reasons, Equality Australia submitted that there is “no logical dichotomy” between an entity pursuing “for beneficial purposes, social, political or legal change through increasing awareness, debate and other activities” and, on the other hand, providing “direct (or sufficiently direct) relief to those intended ultimately to benefit from the entity’s pursuits”. We do not understand Thawley J to have been laying down any rigid rule in that regard. Rather, Thawley J’s carefully considered reasons, read as a whole, show that his Honour regarded the question to be one of fact and degree, to be answered as a matter of evaluation.
117 In this context, Thawley J also said at [26] –
The more abstract and less direct an institution’s activities are to the relief of poverty, sickness, destitution, helplessness or distress, the less likely the entity is to be regarded as a [public benevolent institution].
118 The majority quoted this passage at [87] of its own reasons, and emphasised it with bold type. It is apparent that the majority considered Thawley J’s statement to encapsulate the core of its own analysis. In applying the criterion of a sufficient connection, the majority evidently considered the whole sweep of Equality Australia’s activities, and considered the nature and extent of the connection between these activities and the relief of the identified distress. Without any further articulation of how and why analysing the issues in this way involved a misapplication of the criterion selected by the majority, we are unable to see how the majority reached a factual conclusion that was not open to it as a matter of law.
119 For this reason, Equality Australia has not demonstrated any error of law in connection with its refined first question.
The Commissioner’s notice of contention
120 As we have already mentioned, the Commissioner filed a notice of contention in the appeal, which comprised the following grounds –
(a) having found that Equality Australia was organised to engage in advocacy (especially legal advocacy), education and campaigning to achieve changes in laws, social practices and administrative policies, the Tribunal ought to have concluded that Equality Australia was ineligible for registration as a public benevolent institution;
(b) having found that the activities of Equality Australia were directed towards LGBTIQ+ people generally, rather than being targeted specifically to those experiencing poverty, sickness, destitution, helplessness, misfortune or distress, the Tribunal ought to have concluded that Equality Australia was ineligible for registration as a public benevolent institution; and
(c) the Tribunal ought to have concluded that Equality Australia was ineligible for registration as a public benevolent institution because its activities were inherently preventative in nature.
121 The Commissioner’s primary position was that the appeal should be dismissed. Our conclusion that, as a matter of law, it was open to the Tribunal to decide that Equality Australia is not a public benevolent institution is a sufficient basis on which to dismiss the appeal. Given we have reached this conclusion as to Equality Australia’s grounds of appeal, it is not necessary to address the Commissioner’s notice of contention. As a result, it is also unnecessary to consider whether it is appropriate for a respondent to an appeal on a question of law, who argues that the appeal should be dismissed, to identify by way of notice of contention what in truth are no more than alternative paths of reasoning that might have been open to the Tribunal upon the hypothesis that the Tribunal had misdirected itself in certain discrete respects.
Conclusion
122 The appeal will be dismissed.
123 The parties informed the Court that, regardless of the outcome of the appeal, the parties would bear their own costs. Accordingly, there will be no order as to costs.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Wheelahan, Hespe and Kennett. |
Associate:
