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2007 ATC 4568

Jessup J

Federal Court


Judgment date: 20 June 2007

Jessup J:

1. Before the court are three appeals pursuant to s 14ZZ of the Taxation Administration Act 1953 (Cth). Each appeal is against an assessment under the Fringe Benefits Tax Assessment Act 1986 (Cth) ("the FBTA Act"), the three years in question being those ended 31 March 2001, 2002 and 2003. The only questions which the court is required to determine in each of the appeals are whether the applicant was, at the relevant time,

(a) a "charitable institution" within the meaning of s 65J(1)(b) of the FBTA Act; or
(b) a "non-profit association, ... established for community service purposes" within the meaning of s 65J(1)(j) of the FBTA Act.

If the answer to either of these questions is yes, the applicant will be a "rebatable employer" for the year in question. The proceeding was conducted on the basis that no distinction was to be made between the years to which the three appeals relate.

2. The applicant is a not-for-profit company, limited by guarantee, which provides private health insurance. It is not suggested that such an activity is charitable as such; rather, the applicant's claim to be a charitable institution is based upon the limitation, in its rules, of the class of persons whom it may accept as members of the fund which is conducts. Broadly, that class is confined to serving members of the Navy (and other arms of the services) who have dependants and other identified categories of persons having particular connections with the Navy (or the other arms). The applicant contends that its objects are thus to promote the efficiency of the Defence Forces and thereby manifest a concern with the benefit of the community as a whole sufficient to invoke the fourth class of charitable purposes identified in Lord Macnaghten's speech in
Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531.

2007 ATC 4571

The facts

3. The applicant's evidentiary case commences on 4 November 1954, when, at a meeting of the Navy Central Canteen Fund Committee, it was resolved to recommend that a Naval Health Benefits Society be formed and that the Central Canteen Fund make a grant of £15,000 to that Society. On 4 January 1955 a memorandum over the hand of T J Hawkins, "Secretary" (possibly of the Department of the Navy) to the Assistant Secretary, Department of the Treasury, referred to the proposal for the formation of a Naval Health Benefits Society. Paragraphs 2 and 3 of that memorandum were as follows:

"Serving personnel are entitled to receive medical, dental and hospital treatment at Departmental expense and are therefore under a disadvantage when joining an outside Health Benefits Society which requires them to pay a contribution which covers themselves as well as their families. They are also subject to frequent transfers from state to state, shore to sea, and to overseas locations and because of this factor, many are deprived from obtaining the benefits receivable by other members of the community, brought about by their difficulty in maintaining continuity of membership of local societies and also the lack of facilities for becoming a member of such a society when serving in certain posts.

It is therefore thought most desirable that an organisation be provided which will ensure that Naval personnel receive in respect of their dependants the benefits applicable to other members of the community, and at the same time allow him a concession in respect of his own non-insurable status. The lower deck committee of the R.A.N. Central Canteen Fund has also considered this matter and has recommended that a substantial grant be made from Canteen Funds to establish the society."

By 15 April 1955, Treasury approval had been received for the formation of a Naval Health Benefits Society. Implementation of the proposal was approved by the Naval Board on 6 May 1955.

4. The Society was duly formed. The objects of the Society were -

(a) to assist members in meeting the cost of
(i) medical, surgical and therapeutic treatment of and attendance on members and their dependants by legally qualified medical practitioners, and the provision of comforts, appliances and requisites arising out of any such treatment; and
(ii) accommodation, maintenance and treatment of members and their dependants as hospital patients; and
(b) to do all such other things as may be considered by the Committee to be necessary or desirable in connexion with all or any of the objects referred to in the last preceding paragraph.

The Society consisted of members, in accordance with the following eligibility provision:

"Any person employed in continuous full-time duty -

(a) in the Naval Forces, other than a person without dependants, or
(b) as a civilian in the Department

shall be eligible to become a member."

When a member died, his widow during her widowhood, his children under the age of 16 or any other person approved by the committee as being wholly dependent upon him at the date of his death, were permitted to continue membership. The constitution provided for the establishment of a medical benefits fund and a hospital benefits fund. It provided for the circumstances in which benefits would be paid to members or their dependants. It set out the contributions which members were required to pay. It provided for general meetings of members, and for other matters commonly found in the rules of voluntary associations. If the Society were dissolved, its funds, property and assets remaining after the payment of outstanding claims, debts and liabilities were to be applied "as the Naval Board shall direct". At its formation and, it appears, throughout its life, the Society was a true association of members. Its particular feature, of course, was that the contributions which members made as such went into the fund from which benefits were paid in the case of illness or injury.

5. As appears from the provision defining eligibility for membership, a particular feature of the Society was that a member of the naval

2007 ATC 4572

forces without dependants was not eligible. This was consistent with one of the originating purposes which led to the foundation of the Society, and to which I have referred above, namely, to provide a scheme which would, for an attractive family contribution rate, provide cover only for dependants. As I have said, serving members of the Navy did not (and still do not) require health insurance for themselves. Another feature of the Society which should be noted is that civilians employed in the Department of the Navy were also eligible for membership. Such persons were not provided with medical and hospital benefits as part of their employment, and were, in that respect, in the same position as members of the community having no connection with the Navy. However, apparently it was thought appropriate to include within the range of persons who would be eligible for membership of the Society the civilian employees of the department. Accordingly, there was a contribution rate for civilian members without dependants (whereas there was, for the reasons I have explained, no such rate for naval members without dependants). The family contribution rate for civilian members was higher than the corresponding rate for naval members.

6. The Society apparently operated as intended for many years. However, in 1972 the Society found itself in circumstances which, according to the evidence, made it "technically insolvent". As a result, it sought a loan of $30,000 from the RAN Central Canteens Board, and that loan was approved on 27 September 1972. On 14 June 1973 the loan was renewed, at which time the board also agreed to guarantee the operation of the Society "until it is overtaken by the National Health Scheme in July, 1974." It seems that the loan was never repaid, and was effectively forgiven, and treated as a donation.

7. In 2000, substantial changes were effected to the National Health Act 1953 (Cth) ("the NH Act"), under which the applicant was registered. These changes were introduced by the Health Legislation Amendment Act (No 3) 1999 (Cth) ("the 1999 Act"). A new s 68 was introduced, which provided that an organisation was not entitled to apply for registration unless -

· it was a company limited by shares, by guarantee or by both shares and guarantee,
· its constitution and rules provided that it was established for the purpose of conducting a health benefits fund and for no other purpose, unless that purpose was incidental to the conduct of that fund; and
· there was to be credited to that fund the whole of the income of the organisation arising out of the carrying on by the organisation of business as a registered health benefits organisation (including any income arising from the investment of money not immediately required for the payment of benefits).

At the same time, s 73AA was introduced into the NH Act, by which an existing unincorporated registered organisation (such as the Society) was required to "arrange for the health insurance business of the organization to be transferred to a company of a kind that would be eligible under section 68 to apply for registration as a health benefits organization".

8. As a result, the applicant was incorporated on 2 May 2000. There is no evidence of the mechanism by which the assets and liabilities of the Society were taken over by the applicant, but, in practical terms, it appears that the applicant thereafter operated in the same way as the Society had done previously.

9. In the years to which the proceeding relates, the applicant was a registered organisation within the meaning of the NH Act. The NH Act prohibited the carrying on of health insurance business save by a registered organisation. An "organisation" was "a society, body or group of persons, whether corporate or unincorporate, which conducts a health benefits fund".

10. The applicant was a "restricted membership organisation" within the meaning of the NH Act, that is -

"... an organisation the rules of which restrict eligibility for membership by reference to:

(a) employment or former employment in a profession, trade, industry or calling;
(b) employment or former employment by a particular employer or by an employer included in a particular class of employers;

2007 ATC 4573

(c) membership or former membership of a particular profession, professional association or union;
(d) membership or former membership of the Defence Force or of a part of the Defence Force; or
(e) any other prescribed matter;

not being an organisation that has notified the Secretary in writing that it does not wish to be subject to the provisions of this Act relating to restricted membership organisations."

Save in the context of restricted membership organisations, the NH Act did not refer to "membership" of, or to "members" of, an organisation as such. Rather, it referred to membership of, or to membership as a contributor of, a fund. It seems that the concept of "membership" which the definition of "restricted membership organisation" contemplated was not that of membership of the organisation, but rather that of membership of the health benefits fund conducted by such an organisation. As a company limited by guarantee, the applicant did not itself have any such restriction on eligibility for membership as the definition contemplated. As it happened, the applicant had one member only (a matter to which I shall return). What the applicant (in common it seems with other registered organisations) referred to as its "members" were in fact its contributors, ie persons who, by their contributions, paid premiums for health insurance at various levels, or, in other words, the applicant's customers. Save where the context requires otherwise, in these reasons where I refer to "members", I mean members in this sense.

11. Many of the provisions of the NH Act contemplated that a registered organisation would have a "constitution". Many such provisions contemplated also that a registered organisation would have "rules", defined as:

"... the body of principles devised by the management of the organisation that relate to the day-to-day operation of the health benefits fund conducted by the organization and include principles for determining the rates of contribution for contributors and the benefit entitlements, and the conditions relating to benefit entitlements, for contributors and for their dependants."

The applicant had a constitution, which provided that it was established "for the purpose of conducting a health benefits fund ... and for no other purpose". The constitution also provided for the making of rules, in the following terms:

"The Directors may from time to time by resolution of the Board make rules and regulations in relation to the Company and its business and to the funds conducted by it not inconsistent with this Constitution and may in like manner annul or vary any rule or regulation and all rules and regulations made for the time being in force will be binding on members and upon members of any of the funds and will have full force and effect accordingly. Without restricting the meaning of the above it is expressly declared that rights and privileges which may be accorded to contributors to the funds conducted by the Company may be dealt with by rule or regulation."

12. Under its constitution, the income and property of the applicant had to be applied solely towards the promotion of its single object, ie conducting a health benefits fund. If the applicant were dissolved, all its funds, property and assets that remained after payment of outstanding claims, debts and liabilities, were to be applied to another organisation or institution with objects similar to that of the applicant, which prohibited the distribution of income and assets to its members, and which was exempt from the payment of income tax. A person might have become a member of the applicant (ie as distinct from a member of the fund) by agreeing to be bound by its constitution, by the Chief of Naval Staff agreeing that he or she may be a member and by the directors admitting the person to membership. (The applicant had one member only: NHBS Company Ltd, which in turn had seven members, namely, the delegate of the Chief of Navy, three approved serving Navy personnel, two non-executive members and a Managing Director (who was also the Managing Director of the applicant)).

13. The management of the applicant was under the control of a board of directors, in the membership of which there were four serving

2007 ATC 4574

Navy personnel. The Chief of Naval Staff might remove any director. The applicant had a general manager, who was appointed by the board with the approval of the Chief of Naval Staff. There was a Health Benefits Fund, to which had to be credited the whole of the income arising out of the carrying on by the applicant of the business of a registered health benefits organisation. No amount could be debited to that fund other than payments of benefits to contributors or their dependants, costs incurred in the carrying on of a business of a registered health benefits organisation, and other related activities.

14. The applicant's rules confined the classes of persons who could become members to the following:

a. Any person employed on full time duty:
i. in the Navy, Army or Air Force other than a person without dependants, or

Note: A serving Navy, Army or Air Force member is ineligible for benefits whilst a member of the RAN, ARA or RAAF if paying Defence family premiums. They can opt to be a Navy Health member by choosing to pay the Civilian Contribution rates.

Any member transferring from a Defence membership to a Civilian membership, but has not left the Defence forces, will not be able to return to a Defence membership.

A member paying the Defence contribution rates can leave the Defence forces and become a Civilian member. If they rejoin the Defence forced they are eligible to return to a Defence membership which offers a discounted rate to the Civilian membership.

as a civilian/civilian contractor with the Department of Defence, Naval Shore Establishment, Dockyards, other Defence Establishment, employee of the Australian Public Service, or an employee or member of an organisation contracted to supply Navy Health Limited.

shall be eligible to become a Member

b. as a civilian/civilian contractor with the Department of Defence, Naval Shore Establishment, Dockyards, other Defence Establishment, employee of the Australian Public Service, or an employee or member of an organisation contracted to supply Navy Health Limited.
c. A person on full time duty in the Navy, Army or Air Force who is without dependants shall be eligible to become a member from the day after discharge from the RAN, ARA or RAAF
d. An active member of the RANR, ARAR or RAAFR is eligible to become a member.
e. A dependant, shall upon ceasing to be a dependant, be eligible to become a civilian member by paying a contribution specified in the rules.
f. An ex member of the RAN, ARA, RAAF or RANR, ARAR or RAAFR, the Department of Defence or Defence Civilian workforce are eligible to become civilian members by paying the civilian rate of contributions as specified in the Schedule of contributions.
e. Dependants and ex-dependants or serving and ex-serving members are eligible to join.
f. Cadets (RAN, ARA & RAFF), and their immediate family are eligible to join.
g. Any person, who at some stage is eligible to join Navy Health, is able to join at any stage, regardless of wether their eligibility status at the particular time of joining has changed.
h. Other such persons approved by the Board.

There was a certain clumsiness about the drafting of par a. and b. of the provision set out above. It was common ground that par a. made eligible for membership any person employed full-time in the Navy, Army or Air Force, other than a person without dependants. It may seem curious that a person employed directly by the Navy, Army or Air Force who had no dependants was not eligible for membership. This arose from the fact that a serving member of the armed forces was comprehensively covered as part of the conditions of his or her service for medical and hospital treatment in the event of illness or injury and would, therefore, have had no need for privately arranged health insurance. That cover, however, would not have been available in the event of an illness or injury befalling one of the serving member's dependants, such as a member of his or her immediate family. By offering family cover

2007 ATC 4575

only in such circumstances, the applicant effectively provided cover for the dependants, but not for the serving member. Thus the serving member without dependants was not within the applicant's cohort of potential customers.

15. The rules of the applicant also covered such matters as membership (ie of the fund), contributions, benefits and claims, and contained detailed tables of benefits applicable in particular circumstances. Save in the case of a member whose services had been terminated for misconduct, discreditable service or inefficiency, a member who ceased to be employed on full-time duty in the Navy, Army or Air Force, or in the department, was eligible to continue membership of the fund. Where a member died, his or her dependants might have continued unbroken membership of the fund, and were deemed to be civilian members, but might have, for a period of 12 months after the death of the original member, continued making contributions at the defence rate. Where a dependant of a member had attained the age of 22 years and was no longer dependant, he or she might have continued membership in his or her own right in accordance with the rules. Likewise, where a spouse was no longer a dependant, he or she might have continued membership in his or her own right in accordance with the rules.

16. The applicant's rules permitted the temporary suspension of membership, according to the following provision:

"Navy Health at its absolute direction may allow, within a clearly defined limited set of circumstances, for a member to suspend their membership for an agreed period. Where the suspension has been approved in writing by the fund, members will be advised of the conditions relating to waiting periods and pre-existing condition rules which may be applied upon reinstatement of membership. The agreed suspension period is not subject to change without written notification to and written confirmation from Navy Health."

17. The tables of benefits for which the rules provided would not be unfamiliar to any person who has considered the matter of private health insurance. There were many variations of "Top Hospital" cover, some of which were called, for example, "Top Hospital Saver 1 with Top Extras", "Top Hospital Saver 1 with Premium Extras" and "Top Hospital Saver 1 with Single Selection". There was a "Basic Hospital" table, together with other tables involving basic hospital cover, including, for example, "Basic Hospital with Top Extras" and "Basic Hospital with Budget Extras". There was a "Pay & Save" table, a "Couples Choice" table, a "Lifestyle" and a "Couples Econo Cover" table. Those to which I have referred were some only of the more than 30 tables for which the rules provided.

18. The applicant placed in evidence before me a copy of its health cover guide and application forms dated 1 April 2005. Although that publication is subsequent to the years to which the proceeding relates, both parties agreed that I might take it as indicative of the kind of guide which the applicant published in the years in question.

19. In the section of the guide headed "Introduction", the following appears:

"For the past 50 years Navy Health has continued to support the wider defence family.

Navy Health began its life in 1955 to provide for the unique needs of defence personnel.

The membership eligibility criteria has since extended to include others who have provided support to the defence community.

Navy Health is a fund belonging to the members. It is not for profit and is registered as a Restricted Membership Organisation under the National Health Act.

Approximately 30,000 people have chosen Navy Health as the fund of their choice."

The categories of membership eligibility are then set out. Under the headings "Advantages of Private Health Insurance", "Rebated Premiums", "Lower Premiums - For Life" and "Save on your Tax" the guide makes broad promotional and informational statements about private health insurance as such, without any particular focus upon circumstances which set the applicant apart from other private health insurance providers. However, the guide continues as follows:

"Advantages for Serving ADF Members

2007 ATC 4576

As a serving member of the ADF, you are entitled to receive discounted military family premiums.

On discharge you will receive immediate benefits and will be entitled to the discounted family premiums for a further 12 months....

In the event that you are posted overseas, Navy Health will allow you to suspend your membership....

For ADF Reservists

As a full time reservist (or if you have 28 days or more of continuous service) you may be entitled to suspend your membership or take advantage of the discounted military family premiums....

For Young Adult Dependants

Young adult dependants can remain on their family cover until they turn 22 or 25 if they are a full time student...."

20. Under the heading "Product Options", the guide then sets out a checklist of benefit categories available in private and public hospitals respectively, and gives some simple guidance on the subjects of "Choosing Your Extras Cover" and "Choosing Your Packaged Options". The guide then refers to "Other Services" provided by the applicant, being travel insurance and total and permanent disability insurance (each provided through the agency of a separate insurance company) and home loans, available through the mortgage broking arm of the applicant.

21. The guide next turns to a detailed explanation of the medical and hospital benefits provided by the applicant, under the various tables. Details of premiums are set out. A feature of these is that there are separate tables covering "Military Family Premiums" and "Civilian Family Premiums". The consequence of the fact that a member who is enlisted in the armed services will not, himself or herself, be covered is to be seen in a comparison between the military family premiums and the civilian family premiums. Taking the example of top hospital cover, the non-rebated fortnightly contribution for military family premiums is $86.05, whereas the corresponding contribution for civilian family premiums is $101.30.

22. Under the heading "Health Care Costs of Serving Members" the guide states as follows:

"Health care costs of serving members are met by the Commonwealth until the date of discharge. This is regarded as the equivalent of private health insurance and as such no Lifetime Health Care penalty applies to members of the ADF when they separate, providing they take out private health insurance within 90 days.

For the serving member waiting periods and pre-existing ailment restrictions can be avoided if you join within 90 days of discharge and the membership application takes effect from the day following the discharge.

Families with one serving member can opt to pay the Military family premium. This premium excludes the cost of one adult and this adult can NOT make any claims on the fund. Refer to the Military family premium table on page 24.

Families with two serving members can also opt to pay the Military family premium. This premium excludes the cost of two adults and these two adults can NOT make any claims on the fund. Refer to the Military family premium table on page 25."

23. Under the heading "Overseas Benefits" the guide states as follows:

"When a member incurs a health care expense whilst overseas, health fund benefits are payable according to the level of cover (providing the membership is current). Benefits are based on the Australian Exchange rate as at date of service.

Any claims for services rendered overseas must be fully paid and receipted prior to claiming.

We caution members, that these benefits may not be sufficient to give reasonable cover for hospitalisation in many countries. Medicare and Gap Medical Benefits are not payable and as a result the patient is solely responsible for the cost of all associated medical services. As a consequence we strongly advise all members to link their normal health insurance with Navy Health

2007 ATC 4577

Travel Insurance when travelling overseas. (Refer to page 4 for further details.)

Advice regarding countries holding reciprocal Medicare agreements with Australia can be obtained from your local Medicare office."

24. The applicant's summary annual report for 2004 is in evidence. In it, the applicant's Managing Director provided his "Review of Operations". He referred to matters of financial and economic efficiency, both in the trading result of the applicant itself and in relation to the private health insurance sector as a whole. He referred in particular to the need for the continuation of Federal government support by way of the 30% rebate on private health insurance contributions. He continued:

"Despite the call of a number of the major open funds for industry rationalisation as a driver of increased efficiencies there is an absence of any tangible facts to support this claim.

There is a considerable difficulty in making direct comparison between the various insurance products offered by the open funds compared to the restricted funds. However, there is sufficient evidence to demonstrate that the latter offers significantly more attractive benefits than the open funds at highly competitive contribution rates.

There has been a level of market driven rationalisation over the past 12 months with Goldfields and IOR being acquired after suffering financial difficulties and NRMA (SGIC) and IOOF being taken-over in an open commercial environment.

In this context, it was very pleasing to note that Navy Health was rated in the August/September edition of the Choice magazine in the top four in each of the hospital tables assessed by the Australian Consumers Association.

The competitiveness of the restricted funds can be attributed in a large part to two major initiatives.

In 1994 when the then Labor Health Minister, Graeme Richardson, threatened to reduce the number of registered funds to "no more than twelve" the restricted funds were instrumental in founding the Australian Health Service Alliance (AHSA), which after controlled expansion, now counts 27 funds in its membership.

AHSA as an umbrella buying group and data manager is the second largest purchaser of health services in Australia. This ensures that AHSA on behalf of its membership is able to negotiate very competitive hospital and medical contracts. A capacity that none of the member funds would be able to address individually.

AHSA, by pooling the utilisation data of all its member funds has an enviable performance and cost history on providers and is regarded by the Commonwealth as the source of the most reliable and best quality, utilisation, cost indices and trend analysis data.

Within the same approximate time-from the restricted funds acquired a specialist software house, Hamb Systems Limited, from National Mutual. Today there are 23 funds utilising the second version of the Hamb's Software and this has enabled containment of what would otherwise be an extremely volatile cost centre.

The restricted funds have appreciably improved their representation politically and to Government bureaucracy by strengthening the resources of their dedicated industry body, the Health Insurance Restricted Membership Association of Australia (HIRMAA).

The financial difficulties encountered by a number of funds have resulted in the Government regulator, Private Health Insurance Administrative Council (PHIAC), institute a more formal and regulated review process of each individual fund. Navy Health had a three day review conducted in December 2003. The Company was pleased with the process and the outcome and the various recommendations emanating from the review will provide the foundation for another level of improvement in our governance and compliance practices.

Overall, the company has invested significant resources into ensuring that our corporate governance meets the highest standards and there are many examples

2007 ATC 4578

where the company has shown considerable innovation in embracing advanced techniques to underpin our objective of "being second to none" in this area."

I have set out this rather lengthy passage from the Managing Director's report as it provides some insight into the operations and concerns of the applicant in the years in question, and into the kind of business imperatives to which it was subject. Manifestly, the applicant recognised the reality that it was a commercial enterprise operating in a competitive market, notwithstanding that it was a fund of restricted membership eligibility, and that it was a "not-for-profit" organisation. Indeed, the operating surplus for the applicant's fund for the 12 months to 30 June 2004 was $2,261,000 on contribution income of $26,977,000.

25. It is common ground that, in legislation of the kind presently before the court, a "charitable" institution is an institution which is charitable by reference to the preamble to the Statute of Elizabeth, and the four classifications propounded by Lord Macnaghten in Pemsel. The contentious question is whether the applicant was such an institution. It was not suggested by the respondent that the applicant was not an institution. To determine whether it was "charitable" requires a consideration of its objects, to be discerned from its constitution, its rules and its activities. As stated in its constitution, the single purpose of the applicant was to conduct a health benefits fund. To secure a finding that its objects were charitable, therefore, the applicant needs to go beyond the constitution to its rules and activities.

26. In contending that it was, in the years in question, a charitable institution, the applicant relied upon the following facts and circumstances:

· The provision of a special premium for family cover where the member was a serving member of the armed forces;
· The continuation of cover where members and their families travelled interstate or overseas;
· The facility for unlimited suspension of membership;
· The special treatment accorded to personnel discharging from the armed forces;
· The composition of its board, and the role of the Chief of Navy in relation to the applicant; and
· Its practical focus, in its marketing and other activities, upon Navy personnel and the advantages to them of contributing to the applicant's fund.

I shall consider each of these in turn, and certain other circumstances upon which the applicant relied in support of its proposition that it was a charitable institution.

27. Unlike the other health insurance funds referred to in the evidence, the applicant offered premiums for "military families" which were, in the examples before the court, some 15% less than the corresponding premiums which it charged for civilian families (or 30% less where the military family had two serving members). This distinction was a reflection of the circumstance that, in the case of a military family, the member himself or herself was not covered. To take the example of a family of four, whereas the civilian family would have all four members covered by benefits under the fund, the military family would have three members only so covered (or two members only if two members of the family were serving members of the forces). This reduced level of coverage was reflected in a comparison between military family premiums charged by the applicant and corresponding premiums for family cover charged by other general health benefit organisations: the former were cheaper, by about 18% on average in the case of the top product tables and by about 12% on average in the case of the basic product tables. The point which the applicant made was that its premiums were specifically designed to meet the needs of families, at least one of whose members was a serving member of the forces. It was submitted that, in the case of other health benefits organisations, the option of securing, for a competitive premium, family cover which excluded one or more members of the family because their hospital and medical needs were provided by the Commonwealth, would not be available. In this sense, it was said, the applicant's products were specifically tailored to the needs of Defence Force (particularly Navy) families.

28. The applicant next relied upon the second of the two main reasons for the

2007 ATC 4579

formation of the Society, namely, that it provided uninterrupted coverage for the families of its members when they travelled interstate and overseas. This was said to be a feature of the applicant's offerings which placed it apart from the generality of private health insurance funds.

29. It appears that there was no uniform practice amongst health insurance funds on the matter of the continuation of coverage where a member travelled interstate. The practices of four of the major general funds were the subject of evidence. One of them - MBF - was in the same situation as the applicant in that it provided uninterrupted coverage, at a single premium, wherever in Australia the member and his or her family happened to be. So was HBF, but, being a WA-based fund, local arrangements in that State did not apply to members in other States. The other two - Medibank and BUPA - had what were described as "state specific" premiums, which meant, I presume, that a member moving interstate was required to pay the premium which related to the State where he or she was at the time when each premium fell due. The coverage itself was uninterrupted. Clearly, depending upon the State from which, and the State to which, the member travelled, the move might involve a higher, a lower, or the same, premium. On this evidence, I could not conclude that a member of the applicant, of MBF or of HBF, would necessarily be better-off, in relation to interstate travel, than a member of one of the latter two funds.

30. Turning to the situation where a member and his or her family travelled overseas - such as, for example, in the case of a serving member of the Navy who was posted to another country - the starting point is to note that Australia has signed reciprocal health care agreements with New Zealand, the United Kingdom, Ireland, Sweden, the Netherlands, Finland, Italy, Malta and Norway. This meant that Australian residents were entitled to assistance with the cost of medical treatment required when in those countries, but the nature and extent of the entitlement varied from place to place. It appears that, in most if not all cases, some further coverage was required if the traveller desired to be covered to the same extent as would have been the case under existing private health insurance arrangements in Australia.

31. The applicant provided health benefits to members and their families who incurred health care expenses overseas. Benefits were those to which a corresponding entitlement arose under the particular level of cover to which the member in question had contributed, and were based on the exchange rate at the date of service. The applicant cautioned its members that the benefits so provided may not be sufficient to cover the expenses in fact incurred, and encouraged them to take out travel insurance. If such insurance were taken out, the applicant required the member to claim on that insurance first, and limited its liability for the payment of benefits to the sum necessary to bridge the difference between the amount paid by the insurer and the amount to which the member was entitled under the rules of the applicant.

32. With very limited exceptions, the four general funds mentioned in the evidence did not provide coverage for medical or hospital expenses incurred overseas. The respondent did not contend that the more favourable coverage provided by the applicant in this respect was in effect counterbalanced by less attractive service definitions or more costly premiums. I think the appropriate conclusion in the circumstances is that the applicant provided some assistance to its members in relation to overseas travel that was not generally available to contributors to other health funds.

33. Associated with the matter of overseas travel is the next point which the applicant emphasised: the conditions under which membership of a health fund may be suspended. I have set out the applicant's relevant rule in this regard at par 16 above. It will be seen that the fact of suspension, and the conditions attaching to suspension in particular cases, were wholly within the discretion of the applicant. The evidence of its practice in this regard is a statement in the affidavit of its Managing Director that the applicant permits suspension "while the serving member and their family are overseas and lifts that suspension on their return without potential hardship or inconvenience as to waiting periods or ineligibility due to pre-existing conditions". The four general funds referred to in the evidence provided for

2007 ATC 4580

suspension of membership in circumstances more clearly defined. HBF permitted suspension for overseas travel of more than 8 weeks, with no upper limit. Members were required to re-activate their membership within 30 months of their return to Australia. Medibank permitted suspension for overseas travel of between 2 months and 4 years. A longer period of suspension was available on application, but only after the member had completed a 6-month intervening period of re-activated membership. The other two funds permitted suspension for overseas travel of between 2 and 24 months, after which, at MBF, members could apply for an extension of the suspension or, at BUPA, they could suspend for a further 24 months, but only after completing a 2-month intervening period of re-activated membership. In the case of both of these funds, members must have been in the fund for certain periods before qualifying for suspension.

34. If one looked only at the applicant's rules, one could not conclude that the applicant provided a more beneficial product than the other funds on the matter of suspension. Under those rules, a member's entitlement to suspend lay wholly in the discretion of the applicant. In the case of the other funds, there were more clearly defined rights, notwithstanding that they are subject to various conditions. However, looking also at what the Managing Director said was the applicant's practice, it seems that the discretion was generally exercised in favour of permitting serving members and their families to suspend, without further conditions, in the event of overseas travel. I think the appropriate conclusion is that this aspect should be added to the one previously dealt with in support of a general conclusion that the applicant's benefits were provided in a way that was, in practice, generally of greater utility to serving members of the forces than were the benefits of other funds.

35. The applicant relied also upon what were said to be special benefits provided to, or arrangements made in the case of, persons taking their discharge from the armed forces. In this respect, I need to consider first one aspect of the statutory framework which bore upon the circumstances of such persons. Under s 73BAAA of the NH Act, it was a condition of registration that an organisation comply with Sched 2. That schedule set up a system by which, unless a person had "hospital cover" by his or her 31st birthday, the contributions which he or she was required to pay to a registered organisation for such cover had to be increased in accordance with a formula, such that, the longer the person was without hospital cover, the more expensive it would be for him or her to contribute for such cover if and when he or she chose to do so. Part of the formula provided that, if a person did have, but ceased to have, hospital cover, the contributions which he or she would be required to pay would increase by 2% for each year (calculated by reference to fractions of a year) that the absence of hospital cover continued. However, the first 730 days after a person ceasing to have hospital cover were not counted. The term "hospital cover" was so defined that a person would be taken to have such cover if he or she were included in a class of persons specified in the regulations. Regulation 6(1)(b) of the National Health (Lifetime Health Cover) Regulations 2000 prescribed, as a relevant class of reasons, members of the Australian Defence Force on continuous full time service whose health services were provided by the Force. The general effect of these provisions, relevantly to the present case, was that a serving member of the forces over the age of 31 was insulated from the risk that the contributions which he or she would eventually have to pay in the event of taking out private health insurance after discharge would increase each year in accordance with the legislative formula; and that he or she had a period of two years after discharge within which to take up private health insurance without being subject to the adverse impact of the formula.

36. In so far as the legislative and regulatory provisions to which I have just referred were concerned, the applicant was in no different a position from that of any other health fund. A discharging member of the forces could join any fund within two years and still be treated as having had lifetime health cover. However, there were several aspects of the products offered to such members by the applicant which, it submitted, set it apart from other funds.

37. For the single person, the policy of the applicant was not to enforce waiting periods

2007 ATC 4581

and existing ailment restrictions, normally applicable in the case of a person newly joining the fund, so long as the person joined within 90 days after discharge from the armed forces. The same policy seems to have applied in the case of someone who wished to take up family coverage for the first time upon discharge. The period of grace allowed was shorter in the case of the other four general funds: 30 days for BUPA and two months for Medibank, MBF and HBF. Service in the armed forces was regarded by the applicant as equivalent to coverage at the highest level, such that the 90-day policy had the practical result that the discharging serviceman or woman could take up the highest level of coverage offered by the applicant within that period without waiting periods and existing ailment restrictions. It is said by the applicant that the other funds were less generous in this regard, but it is not clear to me from the evidence exactly what the position was there, and I do not make any finding about it.

38. As an incentive for discharging personnel to join the applicant's fund, the applicant offered coverage at the military family rate (where one family member was serving) for the first 12 months of civilian family coverage, so long as the full 12-month contribution was paid in advance. To reflect payment in advance, the applicant provided a further 4% discount on that first contribution. After the 12 months, contributions reverted to the normal civilian family rate. There appears to have been no corresponding provision made by the four general funds referred to in the evidence.

39. The next matter on which the applicant relied was the composition of its board, and the particular powers and functions which the Chief of Navy had in connection with the applicant. It is said that these indicated a continuing close relationship between the applicant and the Navy. It was pointed out that the Chief of Navy was not separately remunerated for his or her services in relation to the applicant, the implication being that the Navy itself was thereby assisting to keep the applicant's operating costs down, to the benefit of its members. The applicant also pointed out that although its potential membership was very wide, its practical focus was upon those directly or indirectly connected with the Navy itself. As is apparent from the passages to which I have referred above in the guide which it publishes, the applicant promoted itself as the most suitable fund for Navy personnel and Navy families. The evidence is that the applicant often had a promotional presence at Navy functions, and at places where Navy personnel, and their families, had cause to gather.

40. The applicant submitted that, quite apart from the matter of cheaper military family premiums, the benefits provided by the applicant at any given level of cover were more generous than those of the general funds under comparison. I have reviewed the material upon which the applicant relied in this regard, but ultimately I do not consider that I should make any such finding as a generalisation. The market for private health insurance was, it seems, quite competitive. The funds all had their own tables of benefits - hospital, medical and ancillary - and they all provided various conditions attaching to the receipt of those benefits. Whether one package would be more beneficial than another would, I consider, depend very substantially upon the circumstances of the contributor in question. For example, it was pointed out on behalf of the applicant that BUPA had longer waiting periods than the applicant for laser eye surgery, whereas HBF had longer waiting periods than the applicant for joint surgery. It would be quite unsafe for a court to conclude that one fund, overall, provided "better benefits" than another fund or all other funds.

41. The applicant also placed considerable reliance upon the history of its predecessor, the Society. The special circumstances which brought the Society into existence in the 1950s were said to bespeak a purpose of benefiting Navy families, particularly in so far as the Society was established by a grant from the Navy Central Canteen Fund.

42. Summarising the matters to which I have referred and upon which the applicant placed particular reliance, I would find first, that the applicant provided a product that was especially beneficial to serving members of the forces with dependants, in the sense of offering them a limited form of cover not generally available; secondly, that coverage under the applicant's fund continued while a member (and/or his or her dependants) travelled overseas, in which

2007 ATC 4582

respect the applicant's products were superior to those offered by the general funds; thirdly, that the applicant generally offered a facility of suspension in a way that was of greater utility to serving members, and their dependants, than any corresponding facility offered by the general funds; fourthly, that the applicant's arrangements for the transition between military and civilian membership (or between an absence of membership in the case of serving personnel without dependants and civilian membership for such personnel) were generally more favourable than like arrangements elsewhere; fifthly, that there was a close relationship between the applicant and the Navy at board level; sixthly, that the applicant concentrated its promotional efforts amongst Navy personnel and Navy families; and seventhly, that the applicant's origins, in the formation of the Society in the 1950s, involved a conscious endeavour to establish a system that would be of particular benefit to Navy personnel, as undoubtedly it proved to be thereafter. However, I also find that the applicant's fund was conducted under conventional commercial arrangements and that the members of the fund derived no greater benefits than were fairly reflected in the premiums which they paid, notwithstanding that it was no part of the applicant's purpose to earn a surplus or profit for the benefit of its shareholder.

43. The matters to which I have referred in the previous paragraph might be regarded as qualitative indicators of the applicant's activities, and therefore of its object. Quantitative indicators must also be considered.

44. The applicant was a restricted membership organisation. The nature of the restrictions on its membership gave definition to the kind of fund which it conducted, and thereby to its purposes. The applicant's eligibility rule (set out in par 14 above) provided for the following classes of members:

(a) Persons serving full-time in the Navy, Army or Air Force other than those without dependants (sub-cl a.);
(b) Active members of the Navy, Army or Air Force Reserve (sub-cl d.);
(c) Navy, Army or Air Force cadets and their immediate families (sub-cl f. 2)
(d) Persons employed by, or contracted to, the Department of Defence, the naval shore establishment, the dockyards or another defence establishment (sub-cl b.);
(e) Persons employed in the Australian Public Service (sub-cl b);
(f) Persons employed by, or who were members of, an organisation contracted to supply the applicant (sub-cl b.);
(g) Former full-time serving members of the Navy, Army or Air Force, with or without dependants (sub-cl c. & f.)
(h) Former members of the Navy, Army or Air Force Reserve (sub-cl f.)
(i) Former employees of the Department of Defence (sub-cl f.)
(j) Persons formerly employed in the "Defence Civilian workforce" (sub-cl f.);
(k) Persons who were, but ceased to be, dependants of members of the fund (sub-cl e.);
(l) Dependants, and persons who were dependants, of those referred to in (a) and (b) above (sub-cl e. 2);
(m) Persons who were, at any time in the past, eligible for membership (sub-cl g.);
(n) Other persons approved by the board (sub-cl h.)

(It will be noted that, in the eligibility rule itself, sub-cll e. and f. have been repeated. In the list above, I have identified the second appearance of each sub-clause with the subscript "2".)

45. In the previous paragraph, I have re-organised the classes of the applicant's membership somewhat for the purposes of clarification. One may now see that the applicant had what I shall call primary classes of membership, being those persons who, without reference to a relationship with another person or to any previous circumstance, were eligible. In those classes I would place the persons referred to in (a)-(f) above. Next, the applicant had classes of membership which were referable to the previous circumstances of the person concerned. In those classes I would place the persons referred to in (g)-(j) and (m) above. Next again, the applicant had classes of membership which were referrable to an existing or previous relationship of dependency

2007 ATC 4583

apropos another person who was, or had been, eligible. In those classes I would place the persons referred to in (k), (l) and, to an extent, (m) above. Finally, the applicant had an open class of membership at the direction of the board ((n) above), but it was not suggested by the respondent that that class would, of itself, have affected the outcome of the matters which I have to decide.

46. There was no evidence as to the relative size, in the overall revenue of the applicant, of contributions received from the various categories of members; nor as to the relative size, in the overall outlays of the applicant, of benefits paid to those various categories. In financial terms, therefore, the court does not know whether the centre of gravity of the applicant's operations lay in that part of its membership in relation to which it claims to be different, especially Navy families. However, counsel for the applicant provided, without objection, certain information as to the composition of the applicant's membership in 2001 which was said to be typical. At that time, 21.5% of members were current serving military personnel and 37.2% of members had been serving military personnel and had carried over their memberships after discharge. Apparently a very small number of the latter had been in the Army or the Air Force. The remaining 41.3% of members were distributed among the other membership categories, but counsel for the applicant were able to go no further than to inform me that this group would have consisted of those who had been in the forces but who either had not had continuous unbroken membership or had joined for the first time only after discharge, and those who were "civilian members". Again without objection, counsel informed that his instructions were that less than 10% of the applicant's members were "civilian". Other than may be implicit by exclusion of the other classes, counsel did not specify what they meant by "civilian". Some classes of membership should obviously be so described - eg (d)-(f), (i) and (j). Others may be less clear - eg persons eligible under class (k), such as the adult (and no longer dependent) children of serving or former members of the forces.

Charitable institution

47. Do the facts and circumstances referred to above sustain the conclusion that the applicant was "charitable" in the years to which this proceeding relates? The applicant made it clear that its case did not depend on the direct proposition that it provided benefits to serving and previous members of the Navy (or of other arms of the services) as individuals. Rather, it relied upon a line of cases that have upheld as charitable trusts - or institutions - which "promote the efficiency" of the armed forces. That is said to be a purpose which falls within Lord Macnaghten's fourth class in that it benefits the community as a whole.

48. The line of cases upon which the applicant relies commences with
In re Good [1905] 2 Ch 60. There, the testator left his residuary personalty upon trust for the officers mess of his old regiment, the income to be applied in maintaining a library for the mess, and any surplus to be expended in the purchase of plate. Within the residue there were also two houses, and the testator directed that they be for the use of "old officers of the regiment" at a small rent during their lives. Dealing first with the bequest, Farwell J referred to an affidavit by the Assistant Adjutant General in the Army which stated that many messes already had libraries, and that the military authorities had considered whether a library should be regarded as part of the necessary equipment of a mess "on the ground that access to books, and particularly books dealing with military matters, is conducive to military efficiency". His Lordship held that the bequest was charitable under the fourth class. He said:

"I am not of course suggesting for a moment that the officers are objects of charity. It is the public, not the officers, that are benefited by better means being put at the disposal of the officers to enable them to make themselves efficient servants of the King for the defence of their country. On that ground I think this gift can be upheld. I may observe that Kekewich J. in
In re Stephens held that a prize for shooting is a good charitable gift; and Romer J. in
In re Lord Stratheden and Campbell considered that a gift to a volunteer corps was a good charity. I think it would be difficult to say that money given to be expended in terms in

2007 ATC 4584

some specific way in order to increase the efficiency of a regiment in a particular mode is not a good charity.

This gift, to my mind, does tend to increase the efficiency of the army by giving the officers greater opportunities of providing themselves with literature. It is suggested that the literature that may be bought may not necessarily be confined to military literature; but I cannot regard that as a consideration in this case any more than the Courts have considered that in the case of a provision for a public library the library may contain rubbish as well as useful books. I must assume that the books bought will be books of merit, and, after all, so long as they are books of merit they need not necessarily be confined to military literature. An officer is all the better equipped if he can speak several languages, and if he knows the history and geography of his own nation as well as many other nations, as well as being instructed in the military art. I should be sorry to have to hold that any gift which tends to educational equipment in that way is not a charitable gift."

I mention in passing that Farwell J did not uphold the devise. It was conceded that, if the word "old" in the passage "old officers of the regiment" meant "former", the gift was bad. His Lordship held that it did mean "former" and, therefore, that the gift failed.

49. Good was followed by Romer J in
In re Gray [1925] Ch 362. There the testator had left a sum of money to form the nucleus of a fund for his old regiment "for the promotion of sport (including in that term only shooting, fishing, cricket, football and polo)". Referring to an argument that it had previously been held (in
In re Nottage [1895] 2 Ch 649) that a gift to encourage sport was not charitable, his Lordship said:

"But in my opinion it was not the object of the testator in the present case to encourage or promote either sport in general or any sport in particular. I think it is reasonably clear that it was his intention to benefit the officers and men of the Carabiniers by giving them an opportunity of indulging in healthy sport. It is to be observed that the particular sports specified were all healthy outdoor sports, indulgence in which might reasonably be supposed to encourage physical efficiency."

His Lordship referred to the "established principle" of Farwell J in Good. He took the view that the judgement of Farwell J was based primarily on the ground "that the gift on trust for the maintenance of the library was a gift tending to increase the efficiency of the Army" ([1925] Ch 366 and 367). Romer J continued (at 367-368):

"In the case before Farwell J the efficiency was mental efficiency, and the only distinction between that case and the present case is that in the present case the efficiency is physical as opposed to mental efficiency. But it is obviously for the benefit of the public that those entrusted with the defence of the realm should be not only mentally but also physically efficient, and I think I am justified in coming to the conclusion that there is no difference between mental and physical efficiency for the present purpose."

50. Good and Gray were both relied on by Walsh J, giving the judgment of the High Court, in
Downing v Commissioner of Taxation 71 ATC 4164; (1971) 125 CLR 185. There, the testator had devised and bequeathed his residuary estate for a number of purposes, any one or more, or all, of which might have been resorted to by the trustee. The final such purpose was -

"... for the amelioration of the condition of the dependants of any member or ex-member of her Majesty's naval, military or air forces or the naval, military or air forces of the Commonwealth."

For presently relevant purposes, it will be sufficient to confine attention to so much of this gift as related to former forces of the Commonwealth, and to ignore the complications introduced by the inclusion of the former forces of her Majesty elsewhere.

51. Downing involved a question which arose under the Estate Duty Assessment Act 1914 (Cth). Section 8(5) of that Act exempted from assessment dispositions and gifts for a range of purposes there set out with considerable specificity, not including the purpose identified in the final part of the disposition of residue to which I have referred above. This had the result that, if that

2007 ATC 4585

disposition were good, estate duty would be assessed. On the other hand, if the disposition were bad, it could be ignored, and, since the other elements of the disposition of residue were within the exceptions set out in s 8(5), estate duty would not be assessed. The question which came before the High Court was whether the final part of the disposition of residue was good, it being contended by the executor that it was not, because it tended to perpetuity and was not charitable. The central issue, therefore, was whether the disposition was charitable.

52. The primary basis upon which Walsh J decided Downing was that the disposition was for the relief of poverty, and thereby charitable under Lord Macnaghten's first class. His Honour reached that conclusion because of the use of the word "amelioration", holding that the object was "to benefit persons whose lot needs improvement" (125 CLR at 194). Alternatively, his Honour held that, even if the relevant part of the disposition did not refer exclusively to dependants who were poor in the relevant sense, nonetheless "its main object is to enable relief to be given to persons of the specified description, who are through poverty in real need of such relief." (125 CLR at 195). He held that s 131 of the Property Law Act 1958 (Vic) might then have operated to validate the trust (ie on the basis that it included invalid, as well as valid, purposes). However, he proceeded to consider the validity of this part of the disposition from yet another angle which might, depending upon the outcome, have rendered it unnecessary to turn to s 131 at all. He considered whether, even apart from its tendency to fall within Lord Macnaghten's first class, the disposition was for charitable purposes within the fourth class. If it were (and proceeding still on the basis, contrary to his Honour's primary conclusion, that the notion of "amelioration" involved in the disposition did not refer exclusively to the relief of poverty), there would be no need to have recourse to s 131. It is at this point, and at this point only, that Downing becomes relevant to the question presently before the court.

53. Having considered a number of authorities, including Good and Gray, Walsh J said (125 CLR at 198):

"The rule that the promotion of the efficiency of the armed forces is a good charitable purpose may have been derived from the notion that gifts for that purpose tend towards the aid or ease of "poor inhabitants" concerning "setting out of soldiers, and other taxes" and so come within the very words of the preamble to the Statute of Elizabeth. But that does not seem to be a satisfactory basis for the rule as it has developed and, in my opinion, trusts which tend to increase the efficiency of the armed forces, as well as trusts which tend to encourage recruitment to them (see Re Meyers (1951) Ch 534, at p 544), may be regarded as beneficial to the public in a way which the law regards as charitable, because they assist in the promotion of public defence and security."

His Honour then dealt with so much of the judgment in Good as concerned the house, but noted that it was conceded that the devise would be bad if the class of beneficiaries were merely former, as distinct from elderly, members of the regiment. His Honour continued (at 199):

"In my opinion, a decision whether a trust for the benefit of former members of the services is or is not a valid charitable trust must depend upon the nature and the terms of the gift. I am of opinion that there is no justification for laying down a rule that either a trust for the benefit of ex-servicemen or a trust for the benefit of the dependants of ex-servicemen cannot be a valid charitable trust. I do not accept the cases to which I have just referred as authorities which on that point should be followed. A trust of either of those kinds may tend to promote the efficiency of the armed forces and to promote the security of the country and may be held for that reason to be charitable."

54. Walsh J next turned to
Verge v Somerville [1924] AC 496. He said that it stood in the way of holding that no trust for the benefit of ex-servicemen could be valid under the fourth class. In Verge, there had been a bequest to the trustees of "the 'repatriation fund' or other similar fund for the benefit of New South Wales returned soldiers". Much of the opinion of the Judicial Committee in that case was concerned to deny the proposition that, to be valid under Lord Macnaghten's

2007 ATC 4586

fourth class, it was necessary that the purposes of the trust be in some sense directed to the assistance of the poor. Having dealt with that aspect, their Lordships continued (at 506):

"There can be no question but that the gift in the testator's will satisfies the first test required to support it as a good charitable trust. It is a public trust and is to benefit a class of the community - namely, men from New South Wales who served in the war and were returned or to be returned to their native land. Further, if it were necessary to consider at all the question of a trust for the poor, it is a gift which is to benefit that class in some sense expressed by the word "repatriation." This does not mean simply restoring them to New South Wales by paying their fare home. They may be "returned" already, not "returning" soldiers. It means restoring them to their native land and there giving them a fresh start in life. Their Lordships have no doubt that this is a charitable purpose. If it were (which in their opinion it is not) necessary to find that need of assistance is to be a qualification for benefit - that the gift is charitable in the sense of assisting the needy - they find that the words "Repatriation Fund," in relation to the facts as to the Australian Repatriation Fund of which no doubt the testator had knowledge, indicate an intention to benefit the needy. If his words "Repatriation Fund or other similar fund" are referable at all to the statutory Australian Soldiers' Repatriation Fund, and if it were necessary to find a reference to poverty, their Lordships have no difficulty in finding it."

It may be seen that the principle upon which Verge was decided was not that the trust tended to promote the efficiency of the armed forces - indeed, their Lordships made no reference to the judgment of Farwell J in Good, and the judgment of Romer J in Gray was still some 13 months away. Rather, Verge was decided on the basis that repatriated service personnel were themselves a significant class of the community who would benefit as individuals, and that the spirit and intendment of the Statute of Elizabeth was satisfied in their case.

55. Returning to Downing, Walsh J said of Verge (125 CLR at 199-200):

"The appellant seeks to explain that case as warranting only the conclusion that it is a charitable purpose to re-establish servicemen in civilian life and submits that there is no basis in this or in other authorities for treating as charitable the purpose of providing any other types of benefit to ex-servicemen. It was said that a gift for the setting up again in civilian life of ex-servicemen could be regarded as analogous to "the maintenance of sick and maimed soldiers and mariners", mentioned in the preamble. But I am unable to agree that the re-establishment of ex-servicemen is analogous to the preamble in a way in which other forms of assistance to them cannot be, or that re-establishment (independently of indigence) should be placed in a special category governed by a special rule. Nor do I think it is fatal to the validity of a trust in which the object is indicated of assisting ex-servicemen, that an application of the fund for the benefit of their children or of their dependants is also permitted. It is to be noticed that although the gift in Verge v Somerville [1924] AC 496 was "for the benefit of New South Wales returned soldiers" and did not mention their dependants, their Lordships referred [1924] AC, at pp 505-506, to the Acts under which repatriation benefits were provided, and those benefits included the assistance of dependants. In Re Elgar (deceased) (1957] NZLR 556, the primary object of the trust was the re-establishment of members of the forces but the trust allowed the trustees to apply the fund otherwise for their benefit or for the benefit of their children. It was held to be a good charitable trust. That decision was not challenged when an appeal on other grounds was brought [1957] NZLR 1221. In my opinion the decision was correct. It is in keeping with the generally accepted view that it is part of the responsibility of the community to care for the welfare not only of servicemen but also of their dependants."

His Honour concluded his reasons on the point which is presently relevant in the following terms (at 200):

"I do not doubt that there may be gifts for the benefit of a class of ex-servicemen which are not good charitable gifts. For

2007 ATC 4587

example, the object of a gift may be merely of a social or of a sporting character or of some other character such that the purpose could not be classed as one which the law would recognize as charitable. But I am of opinion that valid charitable trusts may be created for purposes relating to the welfare and to the assistance of ex-servicemen or of their dependants, as well as for the welfare and assistance of persons who are still serving members of the forces, if the purposes can reasonably be considered to advance the safety and security of the country. I am of opinion that a trust may be considered to tend towards that result by means of providing aid comfort and encouragement to the armed forces or a section of them, notwithstanding that those who will directly benefit from the trust are those who have ceased to serve or their dependants."

56. I consider that, properly understood, the judgment of Walsh J in Downing involved an extension of the principle for which Good and Gray stood, such that it may now be regarded as promoting the efficiency of the armed forces - and in that sense as being for the good of the community generally - that a bequest, trust or the like has the purpose of providing aid, comfort and encouragement to serving personnel, retired personnel, or their dependants in either case. If there were a settlement as such to establish a fund to meet the hospital and medical expenses of such persons, there could be little doubt but that it would come within the principle for which Downing stands. That such persons should be relieved of the concern otherwise occasioned by the potential exposure to substantial hospital and medical expenses has, in my view, all the qualitative elements of "aid, comfort and encouragement" to which Walsh J referred. There is, of course, also the question whether such a purpose would be within the spirit and intendment of the Statute of Elizabeth. From the fact that the purpose of providing comfort etc to the dependants of former members of the forces was held to be charitable in Downing (although the matter was not specifically mentioned by Walsh J), it would seem to be so. However, it is sufficient for present purposes to point out that the preamble itself refers to "the maintenance of sick and maimed soldiers and mariners". I consider that such a purpose should be regarded as closely analogous to this provision in the preamble.

57. Applying this line of jurisprudence to the circumstances of the present case, there are two particular matters which have the potential to stand between the applicant and the conclusion which it seeks, namely, that it was charitable in the years to which this proceeding relates. The first matter is whether a difference is made by the circumstance that the health cover provided by the applicant was not given to its members, nor even made available to them at heavily subsidised rates. Rather, that cover was sold to those members at normal premiums much in the way that any health cover would be sold by any registered organisation. Given the absence of private gain, it is clear that these circumstances would not disqualify the applicant's activities from being regarded as charitable:
Incorporated Council of Law reporting (Qld) v Commissioner of Taxation 71 ATC 4206; (1971) 125 CLR 659, 669-670;
Scottish Burial Reform and Cremation Society Ltd v Glasgow Corporation [1968] AC 138; and see Dal Pont, Charity Law in Australia and New Zealand, OUP, 2000, pp 25-26.

58. The second matter is more complicated. It relates to what is sometimes referred to as the problem of "mixed purposes". The problem arises from the fundamental requirement that a bequest or gift (etc), and therefore, I consider, an institution, is not charitable unless (in the case of a bequest or gift) the property or funds may be applied to charitable purposes only or (in the case of an institution) its objects are charitable ones only. It is sufficient to refer to
A-G (NSW) v Adams (1908) 7 CLR 100 and to
Smith v West Australian Trustee Executor & Agency Co Ltd (1950) 81 CLR 320 in this respect. I consider that this requirement informs the construction of s 65J(1)(b) of the FBTA Act, although I note that many of the authorities commonly referred to on the question of the proper characterisation of a body with multiple, or mixed, objects are found, on the examination, to arise under legislation in which the relevant quantitative requirement is stated in terms. Thus one finds that, in what is often treated as a leading Australian case on the subject,
Salvation Army (Vic) Property Trust v Shire of Ferntree Gully (1952) 85 CLR 159, the

2007 ATC 4588

question was whether the lands in question were used "exclusively for charitable purposes". One finds also that many of the English cases - of which
Commissioners of Inland Revenue v Yorkshire Agricultural Society [1928] 1 KB 611,
Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] AC 380 and
Commissioner of Inland Revenue v Royal Naval and Royal Marine Officers' Association (1955) 36 TC 187 are examples - were concerned with the question whether a body was established "for charitable purposes only". To the extent that such cases are of interest in the present context, it is because of their approach to the problem of mixed purposes, rather than because they establish the basal requirement that, for an institution to be charitable, it must be exclusively so. That requirement, I consider, is part of the general law.

59. There is an exception to the requirement that the purposes of an institution must be wholly charitable if it is to meet the description of a charitable institution. The exception was stated by Dixon CJ, McTiernan, Williams and Fullagar JJ in
Congregational Union of NSW v Thistlethwayte (1952) 87 CLR 375, 442:

"We are here concerned with the question whether a particular corporate body is a charitable institution. Such a body is a charity even if some of its incidental and ancillary objects, considered independently, are non-charitable. The main object of the Union is predominantly the advancement of religion. It is a religious institution composed of ministers and members of Congregational churches combining for certain religious purposes of common interest and a bequest to a religious institution is prima facie a bequest for a charitable purpose (Re White; White v White [1893] 2 Ch 41). In a recent case in this Court, Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159, cases were cited in which it was held that an institution is a charitable institution if its main purpose is charitable although it may have other purposes which are merely concomitant and incidental to that purpose."

It is true that, in Salvation Army, the question was whether certain lands were used "exclusively for charitable purposes", but their Honours in Thistlethwayte appear to have expressed the principle broadly, as applicable to any situation in which the question arises whether a particular body is "charitable".

60. The same conclusion was expressed by Gibbs J, with the assent of a majority of the court, in
Stratton v Simpson (1970) 125 CLR 138. In that case, a testator had directed that his residuary estate be held upon trusts for "the institutions and bodies ... in respect of which ... any gift devise bequest or legacy is exempt from duty under [s 134] of the Administration Act, 1903-1956 ...." Relevantly for present purposes, the question was whether certain institutions or bodies, identified in s 134 by reference to their "main objects" (which were, as so identified, undoubtedly charitable ones) were themselves charitable so as to save the trust from the consequences of the rule against perpetuities. Gibbs J, with the assent of a majority of the court, said (at 157):

"I do, however, agree that cl 15 upon its proper construction creates a trust of the income of the residuary estate which is of indefinite duration, without making any gift of the capital from which the income is derived, and it follows that unless the purposes to which the income must be applied are exclusively charitable the trust fails ..."

Having considered the particular institutions referred to in the will, his Honour continued (at 159-160):

"Paragraphs (d) and (e) would include institutions whose purposes were charitable as being for the relief of "impotent" persons within the intendment of the preamble to 43 Eliz c 4, but a difficulty is created by the fact that the charitable object mentioned need only be "the main object"; the institution might have other non-charitable objects. It is established that "an institution is a charitable institution if its main purpose is charitable although it may have other purposes which are merely concomitant and incidental to that purpose" or in other words if each of its objects is either charitable in itself or should be construed as ancillary to other objects which themselves are charitable: Congregational Union of New South Wales v Thistlethwayte

2007 ATC 4589

(1952) 87 CLR, at pp 442 and 450. If however the non-charitable purpose is not merely incidental or ancillary to the main charitable purpose, the institution will not be charitable: Oxford Group v Inland Revenue Commissioners (1949) 2 All ER 537; and In re Harpur's Will Trusts (1962) 1 Ch 78, at p 87. There is no evidence to show whether at the date of the testator's death there was in Western Australia any institution which answered the description contained in para (d) or (e) of s 134(1) and yet was not charitable because it had a non-charitable object which although not its main object was not merely incidental or ancillary to a charitable object."

In Harpur's Will, one of the two English cases to which Gibbs J referred, a testatrix had directed the division of her residuary estate between "such institutions having for their main object" an object which was undoubtedly charitable. In the passage to which Gibbs J referred, Lord Evershed MR said ([1962] Ch at 87):

"It has been conceded for the purposes of the argument that the class of institutions which I have read, "Institutions and associations having for their main object," etc., is not one which is presently ascertainable. It is further conceded that although the assistance and care of soldiers, sailors and airmen and other members of the Forces wounded and incapacitated would be a charitable purpose, nevertheless the words used by the testatrix are not apt to confine the institutions to those which are exclusively devoted to charitable objects. It follows, therefore, inevitably, that unless the Charitable Trusts (Validation) Act, 1954, can be invoked to save the provision, that provision must, according to the well-established law, be held invalid and ineffective."

The assumption, therefore, that the fact that a body had as its main object a charitable one would not make it a charitable institution underlay the judgment of the Court of Appeal in Harpur's Will. I should treat that assumption as carrying the approval of the High Court in Stratton, subject only to the permissible existence of objects which were incidental or ancillary to the charitable object. More importantly, his Honour proceeded to apply the provisions of s 102 of the Trustees Act 1962 (WA) to save the gift from invalidity in relation to institutions which were not exclusively, but only mainly, charitable.

61. An authority which is often referred to in this area of the law, and which is binding on me, is the judgment of the Full Court in
Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation 90 ATC 4215; (1990) 23 FCR 82. That case concerned a company which conducted a social club but which also provided facilities for a rugby league football club. The question which arose was whether the company was "established for the encouragement or promotion of an athletic game or athletic sport in which human beings are the sole participants" within the meaning of what was then s 23(g)(iii) of the Income Tax Assessment Act 1936 (Cth). Lockhart J undertook a detailed examination of the five separate judgments of the High Court in
Royal Australasian College of Surgeons v Federal Commissioner of Taxation (1943) 68 CLR 436, where the question was whether the College was a scientific institution within the meaning of s 23(e) of the Act of 1936, which exempted from tax "the income of a religious, scientific, charitable or public educational institution". Disagreeing with the conclusion reached by Waddell J in the Supreme Court of NSW in
"The Waratahs" Rugby Union Club Ltd v Federal Commissioner of Taxation 79 ATC 4337; (1979) 37 FLR 413, Lockhart J said (23 FCR at 92):

"The principles which I distill from the Royal Australasian College of Surgeons case are that the question whether the College was a scientific institution within the meaning of s 23(e) depended upon whether its main object was to promote the science of surgery and that the exemption was available even if its objects were of a mixed character, partly professional and partly scientific, provided that its main object was the promotion of science of surgery."

And (at 93):

"Each of their Honours agreed that the test is to determine the main purpose of the College. In none of the judgments do I see support for the proposition that, if the

2007 ATC 4590

promotion of the professional interests of the members concerned was not properly characterised as concomitant, incidental or ancillary to the main object of the promotion of the science of surgery but was a secondary purpose, it would bar the College from the exemption offered by s 23(e)."

And (at 94-95):

"The approach adopted in the "Waratahs" case was, as the passages extracted from the judgment demonstrate, that the existence of a secondary purpose is fatal to the claim for exemption under s 23(g)(ii) notwithstanding the existence of the stated purpose as the main purpose. For the reasons which I have given I cannot distill that proposition from the Royal Australasian College of Surgeons case myself and respectfully disagree with Waddell J: see also R W Parsons, Income Taxation in Australia (1985), par 2.63.

The view that the existence of an independent or secondary purpose precludes another purpose from being the main purpose within s 23(g)(iii) is one which I reject. It implies that a purpose may not be the main purpose simply because some other purpose is regarded as secondary or independent. There are cases, however, where one can discern a main or predominant purpose and other purposes, not being merely ancillary or incidental thereto, but secondary and even independent of the main purpose, yet this would not detract from the former purpose being correctly described as the main purpose. To say that the presence of a secondary purpose prevents another purpose being the main purpose is really to say that the main purpose must be the sole purpose."

62. If the reasoning of Lockhart J were transferable to the context of the question whether a body was a "charitable institution", it would seem to sustain an affirmative answer to such a question in the case of an institution whose main object was charitable, even if it had other non-charitable objects that were not merely incidental or ancillary to its main object. I do not, however, consider that his Honour's reasoning is transferable in this way. Cronulla was an appeal from a judgment which had relied upon the reasoning of Waddell J in Waratahs. Of that reasoning, and of the approach of the primary judge, Lockhart J said (at 94):

"The primary judge adopted substantially the same approach as Waddell J but the correctness of Waddell J's analysis of the Royal Australasian College of Surgeons case was not challenged before him. The primary judge said:

'However, having regard to the later decision of the High Court in Stratton /v Simpson (1970) 125 CLR 138 it now seems clear that Waddell J had correctly construed the Royal Australasian College of Surgeons case.'

In my opinion Stratton's case does not support that proposition. Stratton's case concerned an originating summons seeking a declaration that the residuary bequest contained in cl 15 of the testator's will was void and that there was an intestacy as to the residuary estate. The case turned on the terms of the will and the provisions of s 134 of the Administration Act 1903 (WA) and s 102 of the Trustees Act 1962 (WA). For a body to be a charitable institution its main purpose must be charitable, although it may have other purposes concomitant and incidental to that purpose: Congretational Union of New South Wales v Thistlewayte (1952) 87 CLR 375 at 442; and other cases cited by Gibbs J in Stratton's case at 160. Stratton's case has, in my view, no application to the interpretation of s 23(g)(iii) of the Act which is a different area of discourse."

In this passage, Lockhart J made it tolerably clear that he would not apply the conclusions he reached in Cronulla itself to the resolution of the question whether a body was a "charitable institution", which he regarded as a "different area of discourse".

63. The other member of the majority in Cronulla, Beaumont J, relevantly based his judgment on College of Surgeons. He said that it was sufficient if the object that met the description in s 23(g)(iii) was the main or predominant object. His Honour continued (at 117):

"That is, although it is not necessary that the promotion or encouragement of the sport or game be the only, or exclusive, object, in

2007 ATC 4591

order to qualify for the exemption of its income from tax, the institution must have, as its predominant purpose, the promotion or encouragement of the sport or game. If the institution has such a purpose, that will be the intrinsic character of the object it seeks to promote and the existence of merely incidental functions and purposes will not destroy the claim for exemption."

As I read this passage, Beaumont J did not agree with Lockhart J that the secondary object need not be merely incidental for the exemption in s 23(g)(iii) to apply. Although the third member of the Full Court, Foster J, relevantly agreed with Lockhart J, he was in dissent in the outcome, which circumstance complicates, to say the least, the court's task of identifying what, if anything, was the ratio decidendi of the case as a matter of the construction of that provision. However, that issue need not concern me here, since, as I have said, I think that (although it might be considered to be obiter in the circumstances) Lockhart J did accept what I would call the Beaumont J approach in relation to the question whether a body was a "charitable institution".

64. For the above reasons, I consider that I am bound by Stratton to conclude that a body cannot be regarded as a "charitable institution" so long as it has a non-charitable object, or objects, which is, or are, more than merely incidental or ancillary to its main charitable object or objects, and that Cronulla does not stand in the way of that conclusion. The conclusion is consistent with two recent judgments of single members of the court to which I was referred. In
Tasmanian Electronic Commerce Centre Pty Ltd v Commissioner of Taxation 2005 ATC 4219; (2005) 142 FCR 371, Heerey J said (at 385):

"The main object of the institution must be shown to be charitable. There may be objects that are incidental or ancillary to the main object, but an object that is not charitable, and not incidental or ancillary, will disqualify the institution as a charity."

Commissioner of Taxation v Triton Foundation 2005 ATC 4891; (2005) 147 FCR 362, Kenny J said (at 370):

"If the main purpose of such a body is charitable, it does not lose its charitable character simply because some of its incidental or concomitant and ancillary objects are non-charitable."

65. When the courts have described objects of an institution as ancillary, incidental or concomitant to a main object, they have not meant that the lesser object was merely a minor one in quantitative terms. Rather, they have required that object not be of substance in its own right, but only to be something which tends to assist, or which naturally goes with, the achievement of the main object. Thus in Salvation Army, it was held that trading in the inevitable produce of a training farm established for delinquent boys did not mean the lands in question were not used exclusively for charitable purposes. Thus in Yorkshire Agricultural Society the receipt of private benefits by members - free admission to shows, access to reading rooms, reduced fees for analysis of manures and foodstuffs, special railway facilities, and the like - were held not to disqualify the society from being regarded as charitable.

66. The authorities also show that the need to discriminate between the various objects of an institution - for the purposes of identifying the main object and of deciding whether objects are merely incidental or ancillary - often in practice arises in two quite different contexts. The first is where there is a single bundle of activities, as it were, and the question is whether they are engaged in for charitable, or for non-charitable, purposes, or both. That question is essentially one of characterisation. It arose, for example, in Glasgow Police, where an association was formed by serving and retired police officers to organise and conduct healthy sporting contests and recreational pastimes. It was contended that the association was charitable in that it promoted the efficiency of the police. While recognising that that object was most probably achieved as a result of the association's activities, the House of Lords nonetheless held that it was not the association's main purpose, which was the recreation and amusement of the members themselves. A question of this kind arises where the legal principle remains expressed in a fairly abstract way, such as that an institution which has the purpose of promoting the efficiency of the armed forces (or, by analogy, the police) should normally be regarded as charitable. The

2007 ATC 4592

next issue, in an actual case, will be whether the activities of the institution in question clearly bespeak such a purpose. It was upon that issue that Glasgow Police turned. In Australia, however, and in the context of the present case, I consider that Downing has taken the law a step further. I refer to what I have said in par 56 above. Subject to the exclusion of benefits or gifts to which Walsh J referred as being "of a social or ... sporting character", it is no longer open to ask whether the purpose of providing aid, comfort and encouragement to serving and former defence personnel and their dependants would tend to promote the efficiency of the forces. That question was, I consider, resolved in the affirmative by Downing. For that reason, the matter of characterisation to which I refer in this paragraph does not present a problem for the applicant.

67. The second context of discrimination between objects is that in which an institution, say, has different categories of purposes reflected by different activities in which it may, or does, engage. This is the Salvation Army, Thistlethwayte or Stratton kind of case. Here the institution will have a main object which is charitable and, consistently with the authorities to which I have referred, the question will be whether the other objects (in practice, the other activities) are more than merely ancillary or incidental to the achievement of that main object. It is in this area that I consider that the applicant is in some difficulty.

68. In the absence of other evidence - the onus to call which lay upon the applicant - I consider that the applicant's membership categories should be used to identify what was its main object and any other objects, at least for the purpose of fitting the present case into the conceptual framework provided by Downing. Of the classes set out in par 44 above, clearly those in (a) and (g) would fall within the principle in Downing. To the extent that they were dependants of those in (a) or (g), those in (l) would also be included. I am not sure whether members of the Reserve would fall within Downing, and cadets would probably be regarded as more doubtful again. Both, it seems to me, were in something of a grey area. On the other hand, there were several classes which, on any view, fell outside Downing, namely those in (d), (e), (f), (i), (j) and (k).

69. Going on the figures referred to in par 46 above, about 58% of the applicant's membership in 2001 consisted of serving military personnel and those who had been serving personnel and who had retained their membership of the applicant's fund on discharge. Clearly this group would come within Downing. Something less than 10% were purely civilian members. Clearly that group would fall outside Downing. Because the applicant called no evidence on these important statistics, and gave only a very broad indication from the Bar table, exactly who were regarded as "civilians" is unclear.

70. I was informed that the remaining 32% or thereabouts consisted of former members of the forces who were not members of the applicant's fund at the time of discharge but subsequently became so, and of those who were members at discharge, but who had subsequently allowed their memberships to lapse, and later re-joined the fund. This information was neither given in the form of evidence nor tested in cross-examination. Counsel for the respondent said that they did not object to the court being informed in this way, "subject to questions of weight, of course". I do not know what to make of that qualifier: either the information is correct or it is not, and it is the only information available to the court on something that has become rather critical.

71. It in the circumstances, I have no option but to accept that, numerically, something less than 10% of the applicant's membership in the relevant years was in classes that would not be covered by the Downing principle. Since the applicant did not tell me how much less than 10% this proportion was, I cannot assume, in the applicant's favour, that it was anything more than insignificantly less than 10%. That such a group of persons, numerically minor though they were in the overall scheme of the applicant's operations, should be within the cohort of persons whom the applicant benefited does, in my view, demonstrate that the applicant had as an object the provision of health benefits to persons who fell outside the Downing principle. This object could not be described as ancillary or incidental in the sense explained above. The object was, I consider, a substantive and free-standing one in its own

2007 ATC 4593

right. Indeed, it may be noticed how much wider the applicant's membership eligibility rule was in the relevant years than had been the Society's rule in 1955. It may have been convenient, and consistent with a "Navy family" approach, for the applicant to have made these others eligible to participate in its health cover, but I could not regard it as no more than an incident of the carrying into effect of its main object. The persons concerned were distinct members of the applicant to whom the applicant provided benefits from its fund.

72. I also consider that the actual proportion of persons in the non-Downing classes within the applicant's membership from time to time should not - de minimus situations aside - bear conclusively on the question whether the applicant was, or was not, a charitable institution. If the applicant had the scope within its rules to accept as members persons in those classes, I cannot understand why its objects should not, at least to an extent, reflect that circumstance. Potentially, the class was rather wide. The applicant's Managing Director gave evidence that the reference to "persons employed in the Australian Public Service" was limited in practice to those seconded to, or directly associated with, the Department of Defence or the Navy. Even so, when taken with the reference to employees of that Department as such, the cohort of potential membership would have been, I infer, quite large. The inclusion of those who had been, but were no longer, dependants, and anyone who had, at any time in the past, been eligible for membership, were further examples of the width of the applicant's potential for membership. I can think of no reason not to align the applicant's objects with these classes of membership. In my view, they go beyond anything which could be regarded as ancillary or incidental to the applicant's main object in the relevant sense.

73. On this aspect of the case, I need to say only two further things. First, the applicant placed much store by the particular design of its products, and by the focus of its promotions amongst Navy personnel. I accept that these factors bespoke an especial concern with such personnel and their families. Ultimately, however, they do not bear upon the question I consider to be determinative. That is to say, I accept that, to the extent that the applicant offered its products to what I have called the Downing classes of persons, it offered products of some special utility to them, to some of them, or to all of them in some circumstances. I accept that the applicant's activities in that area reflected its main object. But the fact remains that the applicant had other, not merely incidental, objects as I have identified them above, and that creates a problem for the applicant in the present case which the factors referred to in this paragraph do not address.

74. Secondly, I recognise the force in the applicant's reliance on the circumstances that surrounded the formation of the Society in the 1950s, but those circumstances do not affect the findings which I have made. The purposes behind the formation of the Society remained within the applicant's objects down to the period with which this proceeding is concerned, and may be discerned within what I have described as its main object. But their significance cannot, in my view, extend into the area of membership in relation to which the applicant offered conventional health insurance products to persons who were not within the Downing classes.

75. For the above reasons, I am not satisfied that, in the three years ended 31 March 2001, 2002 and 2003, or in any of those years, the applicant was a "charitable institution" within the meaning of s 65J(1)(b) of the FBTA Act.

Community service association

76. Turning to the question whether the applicant was a "non-profit association, ... established for community service purposes" within the meaning of s 65J(1)(j) of the FBTA Act, the first issue is whether the applicant was, at the relevant time, an "association" at all. As I have noted elsewhere in these reasons, the applicant was a company limited by guarantee, with one member only. Notwithstanding the fact of incorporation, I would be prepared to accept that an incorporated body, including a company, with two or more members might, without inaccuracy, be described as an "association". However, the applicant was not such a body, since it had one member only.

77. On any natural reading of the word, "association" denotes a grouping, or coming together, of two or more persons. Relevantly for present purposes, the dictionary meaning of the word is "a body of persons who have combined

2007 ATC 4594

to execute a common purpose or advance a common cause ..." (OED, 2nd Ed). Unless required to decide otherwise by authority, I consider that the proposition that a single person, whether or not incorporated, might constitute an "association" is quite at odds with the natural meaning of the word, and with normal, everyday, usage.

78. The applicant, however, contended that it was an "association" in the relevant years substantially for two reasons. First, it pointed to the comment by James LJ in
Smith v Anderson (1880) 15 Ch D 247, 273 that there was no difference "between a company and an association". It followed, according to the applicant, that every company was, at the same time, an association. I cannot accept that submission. Nothing in
Smith v Anderston was concerned with a question even remotely similar to the present. Indeed, in the judgments of each of their Lordships in the Court of Appeal, there was clearly an assumption that an association, whatever it otherwise was, would involve a duality or multiplicity of persons. Their Lordships were concerned with s 4 of the Companies Act, 1862 (UK), which proscribed the formation of companies, associations and partnerships of more than 20 persons for certain purposes, unless registered under the Act. Manifestly, "company" in this context was a reference to an unregistered body of persons. It was in that context that James LJ found it difficult to see the distinction between a company and an association. The context is irrelevant to the present circumstances.

79. The applicant also contended that, since 1998, it has been permissible for companies registered as such in Australian to have one member only. It was said that, to decide that a company, which otherwise met the requirements of s 65J(1)(j), should nonetheless be denied rebatable status merely because it took advantage of the facility of having one member only, would be anomalous. The difficulty with this approach, in my view, is that it commences from a starting point that s 65J(i)(j) embodies an assumption that, whatever else, a company was intended to be covered. That starting point may well have been informed by the circumstances of the applicant itself, but it derives no support from the terms of the legislation. For my own part, I can find nothing in those terms which, as a matter of construction, should lead me to regard it as anomalous that a one-person company is unable to satisfy the requirements of par (j).

80. I was referred to some other authorities in connection with this aspect of the case, but none, in my view, has any useful bearing on the question whether a one-person company should be regarded as an "association" under s 65J(1)(j) of the FBTA Act. For the reasons stated above, I am of the view that such a company could not be so regarded, and that the applicant was not such an association in the years to which this proceeding relates.

81. Although not strictly necessary, for the sake of completeness I shall deal also with the question whether the applicant was "established for community service purposes". When used in such a context, "established" refers to the contemporary existence, rather than to the original formation, of the body concerned: see Cronulla 23 FCR at 89 and 116-117.

82. There is, apparently, no authority on the meaning of "community service" in s 65J(1)(j) of the FBTA Act. The provision is based on what was s 23(g)(v) of the Income Tax Assessment Act 1936 (Cth), the explanatory memorandum to which contained the following passage:

"Paragraph (b) of this clause will introduce subparagraph 23(g)(v) which will exempt from income tax the income of not-for-profit bodies established for community service purposes. The words "for community service purposes" are not defined but are to be given a wide interpretation. The words are not limited to those purposes beneficial to the community which are also charitable. They extend to a range of altruistic purposes. The words would extend to promoting, providing or carrying out activities, facilities or projects for the benefit or welfare of the community, or of any members of the community who have particular need of those activities, facilities or projects by reason of their youth, age, infirmity or disablement, poverty or social or economic circumstances. An exclusion from the exemption will apply to bodies established for political or lobbying purposes.

2007 ATC 4595


When purposes are directed to the benefit or welfare of members of the community in particular need, that need must arise by reason of youth, age, infirmity or disablement, poverty or social or economic circumstances. These causes of need are intended to be read broadly. Infirmity or disablement, for example, could be intellectual or physical, and could be congenital or the product of disease or of injury. Similarly, social or economic circumstances could include such varied matters as sex, living in a remote area, or inability to speak English.


All the traditional service clubs such as Apex, Rotary, Lions, Zonta, Quota and the like and community service organisations such as the Country Women's Association of Australia and its constituent Associations are considered to be exempt from income tax under the new subparagraph."

I am not sure that I should consider myself under an executive injunction, not carried into the legislation, to give the words a wide interpretation. However, it is clear that the words are not limited to charitable purposes. But neither should the paragraph be applied, in my view, merely as a fall back position for anybody which almost, but not quite, achieves recognition as a charity.

83. Although a composite expression, I consider that the essence of "community service" is that a service is provided to the community, or a section of the community. Here the word "service" is used in the sense of "help, benefit or advantage", particularly "the action of serving, helping or benefiting, conduct tending to the welfare or advantage of another" (OED, 2nd Ed). I consider that the sale of a product at normal market rates is inconsistent with this understanding of the word "service". The applicant's operations during the years in question, therefore, should not be regarded as the provision of a "service" to its contributors. Neither was there any other person, or group of persons, with respect to whom those operations might have been regarded as the provision of a service.

84. That brings me to the concept of "community". I accept, of course, that the word refers not only to the community as a whole but also to any identifiable section of the community, but it does not follow that the receipt of a service by any group of persons should be regarded as the receipt of that service by a section of the community. Those who actually received the applicant's services in years in questions were not a section of the community: they were those who, by their own consumer choices, purchased the applicant's products. Neither, in my opinion, is the broad concept of community benefit upon which the judgment of Walsh J in Downing was based transferable into the context of s 65J(1)(j) of the FBTA Act. His Honour held that, by having a purpose of providing aid, comfort or encouragement to existing or former members of the armed forces, a benefactor (or, in this case, an institution) likewise had the purpose of benefiting the community as a whole, in the sense of promoting the efficiency of those forces. But that is a concept quite different from the one with which I am presently concerned. Section 65J(1)(j) deals with "service" in a much more concrete setting, and requires, in my view, the community, or a section of the community, to benefit by way of the receipt of some identifiable help, benefit or advantage bestowed or provided directly by the putative benefactor. Such a requirement, I consider, is not satisfied merely because, in this case, the operations of the applicant had a tendency to promote the efficiency of the armed forces, thereby benefiting the community as a whole.

85. For the reasons explained above, I am not satisfied that, in the three years ending 31 March 2001, 2002 and 2003, or in any of those years, the applicant was a "non-profit association, ... established for community services" within the meaning of s 65J(1)(j) of the FBTA Act.

Disposition of the proceeding

86. The parties agreed that, if I should decide the matter in the way I have in these reasons, the appeals should be dismissed with costs. I shall so order.


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