Hanna, Michael --- "Nungera Co-operative Society Ltd v Maclean Shire Council (Local government rates -- exemption -- whether Aboriginal body a public benevolent institution or public charity)" [1991] AboriginalLawB 67; (1991) 1(53) Aboriginal Law Bulletin 15

• Nungera Co-Operative Society Ltd V Maclean Shire Council
• Local Government Rates – Exemption – Whether Aboriginal Body A Public Benevolent Institution Or Public Charity

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Nungera Co-operative Society Ltd v Maclean Shire Council

Local government rates – exemption – whether Aboriginal body a public benevolent institution or public charity

Nungera Co-operative Society Ltd v Maclean Shire Council

Land and Environment Court of New South Wales: Bannon J

21 October 1991

Casenote by Michael Hanna

The Local Government Act 1919 (NSW) provides, at s 132(1), that:

“All land in a municipality or shire (whether the property of the Crown of not) shall be rateable except – (d) land which belongs to and public hospital, public benevolent institution of public charity, and is used or occupied by the hospital, institution or charity, as the case may be, for the purposes thereof”.

Nungera, an Aboriginal housing association with 14 properties, was refused exemption as public benevolent institution or public charity by Maclean Council (see [1991] AboriginalLB 29; 2(50)pg4) and appealed under s.133 to the Land and Environment Court.

The first problem concerned 2 properties still registered in the name of the Aboriginal Land Fund Commission and, in turn, ATSIC. Nungera claimed the properties were exempt because of the prohibition on taxes in s 71 of the ATSIC Act or, alternatively, that the properties ‘belonged’ to Nungera through an interest or estate arising from occupancy for many years, payment of rates and an expectation that ATSIC would transfer the titles of the properties to it in the near future.

The court rejected the first claim because it was not proved that the properties vested in ATSIC on the repeal of the ADC Act. According to Bannon J:

“In default of a declaration by the Minister under s.206 of the ATSIC Act, the assets of the Aboriginal Development Commission were vested in the Aboriginal and Torres Strait Islander Commission... There was no evidence one way or the other of a declaration by the Minister.”

Although expressing some doubt that Nungera had any estate or interest in the properties sufficient to enable it to appeal under s.133, Bannon J accepted that the land belonged to Nungera on the basis that counsel for Maclean Council agreed and conceded the locus standi aspect of the pleadings.

The next issue concerned Nungera’s objects, which were to “relieve the poverty... of needy members of the Aboriginal community in Maclean... through: (a) improving their housing... (b) improving their vocational skills and employment prospects... and (c) arresting their social disintegration by strengthening... Aboriginal and Islander identity and culture and ensuring that all programs and actions are in accordance with their cultural values, customs and practices”.

These objects were found to accord with judicial authority as to the meaning of public benevolent institution and public charity, even though “the subsidiary matter set out in (c) bears a close analogy to the purpose of promoting “Welsh interests in London” held to be non-charitable in William’s Trustees v I.R.C. [1947] UKHL 1; [1947] A.C. 447.”

However, the court was not satisfied that the properties were held upon an enforceable charitable trust as distinct from being owned by a public benevolent institution, so the public charity claim failed.

Attacks on Nungera’s rules concerning distribution of any surplus from operations or on winding up were rejected.

A major concern of the court was whether the land was “used or occupied for the purposes” of the benevolent institution or charity. This arose from Maclean Council’s claim that Nungera did not adequately asses whether tenants were sufficiently ‘needy’. It was alleged this arose when housing was being allotted to applicants; when tenants were allowed to keep extra relatives in the house; when widows and children of deceased occupants were allowed to become tenants; and when tenants became employed. [The 3 employed tenants were a clerical worker at Skillshare (a government funded program), a labourer at the Council and a part-time Aboriginal education assistant at a local high school. All the other 47 adults were either pensioners or recipients of unemployment benefits of the equivalent (from Nungera)]. Eventually, the court was satisfied by the evidence of Nungera administrator, Malcolm Hunt, that in fact the criterion for occupancy was always the need of the Aborigines concerned, in that they were unable to raise loans to obtain housing.

Accordingly, the 14 claims of exemption from rates by Nungera were upheld on the grounds that it was a public benevolent institution and used and occupied its land for the benevolent purpose of the Society.

For Nungera Co-operative Society Pty Ltd: S. Friend, solicitor, Aboriginal Legal Service Ltd.

For Maclean Shire Council: C.S. Leahy of Counsel, instructed by Conroy and Stewart.