YWCA Australia v Chief Commissioner of State Revenue

1. [1]

   PAYNE JA: This is a case about whether a taxation exemption for an “exempt charitable or benevolent body” as defined in the Duties Act 1997 (NSW) applies to the transfer of property from YWCA NSW to YWCA Australia effected in 2018 by a scheme of arrangement. The Chief Commissioner accepts that YWCA Australia is a charitable body and, at least in writing, accepts that its resources were used predominantly for charitable purposes. What divides the parties is whether the resources of YWCA Australia were and are used predominantly for the relief of poverty and/or the promotion of education, rather than for other charitable purposes.

2. [2]

   For the reasons which follow, I find that the resources of YWCA Australia were and are used predominantly for the relief of poverty and/or the promotion of education and that YWCA Australia is thus entitled to the exemption from duty.

Introduction

1. [3]

   The Young Women’s Christian Association was established in England in 1865. A branch was created in Sydney in 1880 with the initial object of providing safe hostel accommodation for female immigrants arriving by ship. By the time of the scheme of arrangement which gave rise to the present dispute, YWCA had evolved into a secular organisation having as its object the provision of benevolent relief to people (in particular, women and children) experiencing poverty, homelessness, violence or disadvantage.

2. [4]

   Prior to the scheme of arrangement which gave rise to the present dispute, the YWCA in Australia was organised on a State by State basis. In the 1920s, the NSW organisation, YWCA NSW, acquired the “Y Hotel” on Liverpool Street in Sydney’s CBD. Originally, the Y Hotel operated as a hostel for women and girls in need of accommodation. The Y Hotel subsequently became a commercial operation generating profits used solely to support YWCA NSW’s charitable activities. The original Y Hotel site was transferred to Wentworth Avenue, on the fringe of the CBD. A second hotel was acquired by YWCA NSW in Redfern in 2006. Both hotels were operated as a commercial operation whose profits were used solely to support YWCA NSW’s charitable activities. The hotels are now called the “Song Hotel Sydney” and “Song Hotel Redfern” respectively.

3. [5]

   By 2018, the various State and Territory YWCA organisations decided effectively to amalgamate their interests. This was to be effected by a scheme of arrangement under which all of the assets and liabilities of the various State and Territory YWCA organisations would be transferred to a newly incorporated body, the plaintiff, YWCA Australia. The scheme of arrangement was designed, in the language of the explanatory statement to the scheme, to “ensure the future sustainability and growth of the YWCA movement in Australia” by “simplify[ing] our structure, creating a platform for us to leverage our strengths and improv[ing] our efficiency and effectiveness” in delivering support to marginalised and at-risk women and children.

4. [6]

   On 22 May 2018, by order under s 411(4)(b) of the Corporations Act 2001 (Cth) made by the Federal Court, the assets and liabilities of each State and Territory YWCA organisation were transferred to YWCA Australia. The transfer of the “Song Hotel Sydney” and the “Song Hotel Redfern” to YWCA Australia occurred by reason of this order of the Federal Court. Under the scheme of arrangement, the assets and liabilities of two organisations, YWCA Housing (formerly Social Housing Victoria) and YWCA National Housing (formerly YWCA Queensland) were only indirectly transferred to YWCA Australia. Under the scheme of arrangement those two entities became wholly owned subsidiaries of YWCA Australia. Each subsidiary is a company limited by guarantee and YWCA Australia is the only member of each. The reason that the assets and liabilities of these two entities were not directly transferred to YWCA Australia was that the real property assets of each entity were subject to community housing regulations in Victoria and Queensland and there was a concern that seeking to transfer the registration with the relevant department of YWCA Housing to YWCA Australia may have created unnecessary issues with the regulator.

5. [7]

   I find on the evidence that YWCA Australia was created and the scheme of arrangement conducted to address difficulties faced by the separate State and Territory YWCA member organisations in competing for funding, together with the preference of philanthropists and the Commonwealth Government for dealing with single national charitable organisations.

6. [8]

   YWCA Australia lodged an application for an exemption from duty on the transfers effected by the scheme of arrangement on the basis that it was an “exempt charitable or benevolent body” for the purposes of s 275(3)(a) of the Duties Act 1997 (NSW). The Chief Commissioner of State Revenue (NSW) refused YWCA Australia an exemption from ad valorem duty.

7. [9]

   Duty in the aggregate amount of $3,326,195.48 ($3,380,653.83 together with interest) at ad valorem rates was charged on the transfer of real property in NSW to YWCA Australia, principally comprising duty payable on the transfer of the Song Hotel Sydney and the Song Hotel Redfern from YWCA NSW.

8. [10]

   YWCA Australia appeals both the Commissioner’s decisions not to grant an exemption in whole or in part pursuant to ss 275 and 275A of the Duties Act (Proceeding No 2018/336819) and appeals against the assessments issued by the Commissioner (Proceeding No 2019/223120). It was agreed by the parties that having regard to the nature of the Court’s role and the extent of its powers in addressing the validity of the assessments which have been issued (Proceeding No 2019/223120), no separate issue was raised by the challenge to the decision (Proceeding No 2018/336819).

Issues to be determined

1. [11]

   The principal issue is whether YWCA Australia is an “exempt charitable or benevolent body” for the purposes of s 275(3)(a) of the Duties Act with the consequence that it is exempt from duty pursuant to s 275(1) on the transfer of dutiable property effected on 31 May 2018 pursuant to the scheme of arrangement.

2. [12]

   The subsidiary issue is whether, if the answer to that question is “no”, YWCA Australia is entitled to a partial exemption from duty pursuant to s 275A of the Duties Act.

Evidence relied upon

1. [13]

   The following lay evidence was read by YWCA Australia:

   1. (1)

      Affidavit of Shannon Maree Wright affirmed on 9 April 2019. Ms Wright is the director of National Service Delivery for YWCA Australia’s programs. Ms Wright annexed copies of the objects of the YWCA member organisations prior to the merger in May 2018, annual reports and financial statements of the member organisations prior to May 2018 and documents describing the programs run by the member organisations prior to May 2018.

   2. (2)

      Affidavit of Shannon Maree Wright affirmed on 24 October 2019. In this affidavit Ms Wright provided additional information as to the expenditure and budgeting of YWCA Australia programs.

   3. (3)

      Affidavit of Shannon Maree Wright affirmed on 24 October 2019. Ms Wright explained that she is responsible for overseeing the YWCA Australia regional offices, including offices at the Nowra, Goonellabah, Campbelltown and Broken Hill properties. Ms Wright listed and described the programs carried on or coordinated at each of the properties. Ms Wright also annexed the floor plans of each property and provided descriptions of the use of the various spaces within the properties.

   4. (4)

      Affidavit of Shannon Maree Wright affirmed on 17 August 2020. In this affidavit Ms Wright described several of the programs run by YWCA Australia and provided more information about the activities conducted at each of the YWCA Australia properties.

   5. (5)

      Affidavit of Janet Margaret Berriman affirmed on 12 April 2019. Ms Berriman was then the director of National Housing for YWCA Australia. Ms Berriman explained that during the amalgamation of YWCA member organisations into YWCA Australia, she did not consider it prudent to transfer the regulated community housing assets of YWCA Housing to YWCA Australia. Instead, YWCA Australia become the only member of its new subsidiary, YWCA Housing. YWCA Australia also became the parent and only member of YWCA National Housing which is now YWCA Australia’s subsidiary.

   6. (6)

      Affidavit of Jessica Frances Watkinson affirmed on 16 April 2019. Ms Watkinson is the National Director of Development of YWCA Australia. Ms Watkinson explained that from 2015 to 2018 she was the Executive Director and then CEO of YWCA Darwin and explained the principal activities of YWCA Darwin during that time. Ms Watkinson affirmed that following the merger of YWCA member organisations, YWCA Australia has continued to carry on each of those programs. Ms Watkinson also explained that she is responsible for maintaining records of YWCA Australia’s funding contracts and annexed copies of funding contracts and letters of agreement for YWCA programs. In a second affidavit affirmed on 24 October 2019, Ms Watkinson explained the steps she had taken to identify further funding material and annexed funding material. In a third affidavit affirmed on 22 January 2020, Ms Watkinson provided further funding material. Ms Watkinson was not cross-examined and I accept Ms Watkinson’s evidence.

   7. (7)

      Affidavit of Michelle Maree Philips affirmed 24 October 2019. Ms Philips is the CEO of YWCA Australia. Ms Philips explained that YWCA Australia’s financial records and accounting system, NetSuite, was used to prepare YWCA Australia’s 2019 financial statements. The financial data was extracted from NetSuite and exported into excel spreadsheets which created the “YWCA spreadsheet” (tab 1 in the excel file titled “tab 1 and 2” in exhibit “MMP-1”) and the “programs spreadsheet” (tab 2 in the excel file titled “tab 1 and 2” in exhibit “MMP-1”). Ms Philips explained the construction of the YWCA spreadsheet from YWCA Australia’s business records as containing financial data for the 2019 financial year by activities and income and expenditure, including corporate services, hotels and rentals, national service delivery, fundraising and events and the National Disability Insurance Scheme (NDIS). The YWCA spreadsheet also records information for the activities identified such as aggregate income or revenue, aggregate cost of sales, aggregate total expenses, aggregate “other expenses”, operating profits and net profits. The programs spreadsheet provides a program-by-program revenue and expenditure breakdown by cost centre.

   8. (8)

      Affidavit of Michelle Maree Philips affirmed on 17 August 2020. Ms Philips affirmed that YWCA Australia’s profit-for-purpose operations of the Song Hotels were forced to close in April 2020 and were still struggling to return to previous levels of operations. Ms Philips also included a number of mapping corrections and corrections to the spreadsheets. I accept Ms Philips’ evidence.

   9. (9)

      Affidavit of Nitika Bhala affirmed on 11 March 2020. Ms Bhala is an accountant employed by YWCA Australia. In her first affidavit, Ms Bhala explained preparation of the YWCA spreadsheet. The YWCA spreadsheet records financial data for YWCA Australia for the financial year ended 30 June 2019. In March 2019, YWCA Australia commenced using NetSuite as a centralised accounting system. She and other members of YWCA Australia’s Financial Department manually allocated data in the YWCA spreadsheet that was not allocated to a particular business activity in NetSuite as part of the data migration. The data recorded in the programs spreadsheet was successfully migrated and allocated to the relevant program and cost centre, as verified by an audit of the migration process. In her second affidavit affirmed on 20 August 2020, Ms Bhala identified some mapping errors in the spreadsheets and explained her corrections. Ms Bhala affirmed further clarifications in her third affidavit affirmed on 24 August 2020. Ms Bhala was not cross-examined. I accept her evidence and find that it, together with the unchallenged evidence of Ms Philips, is sufficiently reliable for the Court to draw conclusions based on the YWCA spreadsheet.

   10. (10)

       Affidavit of Helen Maree Schell sworn 17 August 2020. Ms Schell is the president and Chair of YWCA Australia. She is also the Chair of YWCA National Housing and YWCA Housing. Ms Schell annexed reports by the Australian Council of Social Services (ACOSS), Mission Australia, YWCA National Housing, the Workplace Gender Equality Agency, Western Sydney University and the Victorian Council of Social Services (VCOSS) and discussed how the reports addressed poverty as well as gender-specific challenges for women in Australia. I accept Ms Schell’s unchallenged evidence which I found most helpful.

   11. (11)

       Two affidavits, of 1 November 2018 and 16 July 2019, were sworn by Benjamin Davis, the solicitor on record for YWCA Australia in the proceedings, proving formal matters relating to the dispute with the Commissioner and annexing copies of the assessments, the Commissioner’s decision in relation to the assessments, YWCA Australia’s objections to the assessments and the decision of the Commissioner disallowing the objections dated 20 May 2019. There was no challenge to Mr Davis’ evidence.

2. [14]

   Of the lay witnesses, only Ms Berriman and Ms Wright were cross-examined and each only briefly. Each witness was clearly very knowledgeable about the particular activities of YWCA Australia. No credit submission was made in relation to their evidence. I accept the evidence of Ms Berriman and Ms Wright in whole.

3. [15]

   The following expert evidence was relied upon by YWCA Australia:

   1. (1)

      Affidavit of Sally Louise Davitt affirmed on 20 March 2020 exhibiting an expert report of dated 20 March 2020.

   2. (2)

      Affidavit of Sally Louise Davitt affirmed on 28 August 2020 exhibiting an expert report dated 28 August 2020.

4. [16]

   The following expert evidence was relied upon by the Commissioner:

   1. (1)

      Affidavit of Anthony Bryn Samuel affirmed on 12 May 2020 exhibiting an expert report dated 12 May 2020.

5. [17]

   The parties relied on the joint report of Ms Davitt and Mr Samuel dated 12 October 2020.

6. [18]

   The experts gave concurrent oral evidence based on their joint report dated 12 October 2020. As I will explain, I found the approach of the experts and the considerable co-operation they displayed helpful in isolating issues. The only issues between them are ones based on different assumptions about the underlying facts and correct operation of the Duties Act, which are not questions that either could assist me in resolving.

7. [19]

   Ten volumes of documentary evidence became Exhibit A before me at trial. All evidence was admitted subject to the rulings on objections identified in MFI 1. The Guidelines approved by the Treasurer for the purposes of s 275(3)(b)(iii) of the Duties Act became Exhibit B.

Relevant provisions of the Duties Act

1. [20]

   Before descending into the detail of the evidence and resolution of the issues raised by the parties, it is helpful first to identify the statutory questions here engaged. It was common ground that but for the operation of a statutory exemption, duty was chargeable to YWCA Australia in this case.

2. [21]

   The relevant exemption provision of the Duties Act, s 275, provided at the relevant time as follows:

3. [22]

   The principal issue here is whether YWCA Australia is an “exempt charitable or benevolent body” within the meaning of s 275. This, in turn, raises the issues of whether YWCA Australia:

   1. (1)

      is a body corporate, society, institution or other organisation for the time being approved by the Chief Commissioner for the purposes of s 275(3)(a);

   2. (2)

      whose resources are, in accordance with its rules or objects, used wholly or predominantly for:

4. [23]

   As s 275(3)(a) (the principal focus of these proceedings) makes clear, one of the elements a taxpayer must demonstrate is that it is a body “approved by the Chief Commissioner for the purposes of this paragraph”. Section 101 of the Taxation Administration Act 1996 (NSW) provided:

5. [24]

   Although YWCA was not “approved by the Chief Commissioner for the purposes” of s 275, it was common ground that the requirement that an organisation be approved “for the time being” may be satisfied by approval being given after the dutiable transaction by the Commissioner or the Court standing in the Commissioner’s shoes. That was the conclusion of Ward CJ in Eq in Salvation Army (New South Wales) Property Trust v Chief Commissioner of State Revenue (2018) 96 NSWLR 119; [2018] NSWSC 128 at [153]-[155] in like circumstances. The Commissioner accepted that Salvation Army correctly stated the law in this respect.

6. [25]

   The subsidiary issue raised by s 275A only arises if YWCA Australia is not an “exempt charitable or benevolent body” within the meaning of s 275(3)(a). The issues in relation to the possible contingent operation of s 275A are very limited. At the relevant time s 275A provided:

7. [26]

   The reason that the issues in relation to the possible contingent operation of s 275A are so limited follow from the acceptance of YWCA Australia that if it failed in relation to s 275(3)(a), to succeed in relation to s 275A, 275(3)(c) applied and the Guidelines issued by the Commissioner which applied in relation to that section and s 275A had the effect that only a limited number of the properties transferred to YWCA Australia were capable of qualifying for exemption under this alternative route.

8. [27]

   Before leaving this initial overview of the legislation, s 275A(6) should be noticed. That section provides, in terms, that “this section does not limit section 275”. Despite that clear statutory mandate, at least some of the Commissioner’s submissions sought to do precisely that; to use s 275A to limit s 275(3)(a). These submissions must be rejected.

9. [28]

   One of the matters addressed by the definition in s 275 of the Duties Act, of an “exempt charitable or benevolent body”, is whether the resources of the body are used wholly or predominantly, in accordance with its rules or objects, for the relief of poverty in Australia, or the promotion of education in Australia.

10. [29]

    That raises an initial question about the identification of YWCA Australia’s rules or objects. YWCA Australia’s objects are set out in clause 6 of its Constitution which was adopted upon the implementation of the scheme of arrangement on 31 May 2018. Clause 5 (“vision”) gives context to the objects:

11. [30]

    Clause 68 of the Constitution puts beyond doubt that payments or distributions may not be made to members and that upon winding up the assets of YWCA Australia must be paid or distributed to a body having similar objects:

12. [31]

    The submission advanced by the Commissioner was that the objects of YWCA Australia as expressed in its Constitution are consistent with the predominant component of YWCA Australia’s activities (and concomitantly the use of its resources), falling within the fourth class of charity in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 (Pemsel), with the balance of the activities falling variously within the first three classes in Pemsel. As I will explain, I reject the Commissioner’s characterisation of the activities of and use of resources by YWCA Australia as falling within the fourth class of charity in Pemsel. I find that the objects of YWCA Australia as expressed in its Constitution fall comfortably within the purposes identified in s 275(3)(a).

13. [32]

    In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] the High Court said:

14. [33]

    In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Kiefel CJ, Nettle and Gordon JJ at [14] said about ascertaining the meaning of a statutory provision:

15. [34]

    In SZTAL, Gageler J emphasised, at [35], the observation of Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48 at 315 that the modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might arise and, at [36], Gageler J emphasised the observations of the plurality in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408. At [37], Gageler J said:

16. [35]

    Whilst the Commissioner’s submissions criticised YWCA Australia about the meaning of the “relief of poverty” in s 275(3)(a) as travelling outside of the accepted meaning of the term in charity law, the Commissioner’s submissions also tended to approbate and reprobate about the meaning of the term in context.

17. [36]

    As the High Court has explained on many occasions, concepts such as “charitable purposes” and “charitable institution” are derived, as explained in Pemsel, from the Statute of Charitable Uses 1601, 43 Eliz I, c 4 which gave rise to a technical meaning of these phrases. The “four heads” of charity identified in Pemsel at 583 are as follows:

18. [37]

    Whilst, of course, the question of construction begins and ends with the words of the statute, as the High Court has explained, text in context is also important. I agree with at least one strand of the Commissioner’s submission that in context, it is tolerably clear that in defining an “exempt charitable or benevolent body” as being any body corporate, society, institution or other organisation for the time being approved by the Chief Commissioner for the purposes of s 275(3)(a) whose resources are, in accordance with its rules or objects, used wholly or predominantly for “the relief of poverty in Australia”, or “the promotion of education in Australia”, the legislature was intending to refer to two of the heads of charity described in Pemsel. To the extent that both parties, in different parts of their submissions, suggested the contrary I reject the submission.

19. [38]

    As Isaacs J observed in 1910 in Taylor v Taylor (1910) 10 CLR 218; [1910] HCA 4 at 238:

20. [39]

    “Poverty” is a relative term. It is not limited to destitution: Re Gillespie [1965] VR 402 at 406. Poverty connotes the notion of “going short”. The reference to going short appears to derive from Lord Evershed MR’s judgment in Re Coulthurst [1951] Ch 661 at 666 where it was observed that poverty was a term:

21. [40]

    “Poverty” encompasses the circumstances of a person who is unable independently to achieve the status of being self-supporting: Re Central Employment Bureau for Women and Students’ Careers Association Incorporated [1942] 1 All ER 232 at 233; Re Clarke [1923] 2 Ch 407 at 411-412. Inferential reasoning about the likely status of people using a service is permissible. In Re Niyazi [1978] 3 All ER 785, Megarry VC reasoned that a trust to establish a working men’s hostel in Cyprus was for the relief of poverty as any person who was compelled by circumstance to reside in the hostel was likely to be poor.

22. [41]

    Perhaps the high point, from the Commissioner’s perspective, of cases giving a limited meaning to “relief of poverty” is the speech by Lord Reid in Inland Revenue Commissioners v Baddeley [1955] AC 572. It may be accepted that in Baddeley, his Lordship decided that “no one could say ‘relief of the poor’ if he meant to include relief of disabled people irrespective of their means” (emphasis added).

23. [42]

    In Re Central Employment Bureau Simonds J in the Chancery Division in 1941 held at 233:

24. [43]

    Walsh J said in Downing v Commissioner of Taxation (Cth) (1971) 125 CLR 185; [1971] HCA 38 at 193, with the agreement of Menzies and Gibbs JJ, that “a person may be in need without being destitute”. His Honour continued at 193-194:

25. [44]

    The same point was made in Lemm v Federal Commissioner of Taxation (1942) 66 CLR 399; [1942] HCA 31 at 410-411 by Williams J, with whom the other members of the Court agreed.

26. [45]

    Poverty, being a relative term, cannot be measured by any absolute standard. In modern Australia, the bare essentials of life are, for most people who cannot provide for themselves, provided by Government welfare payments. The relief of poverty is not limited solely to people who have fallen through the cracks in the welfare system, although it certainly encompasses those people. Professor Chesterman’s text, Charities, Trusts and Social Welfare [1] dealt with this issue in 1979.

27. [46]

    The circumstances of Australia’s first nations people are relevant here too. In 1985 Nader J in Aboriginal Hostels Ltd v Darwin City Council (1985) 33 NTR 1 held as charitable a company incorporated to run hostels for Aboriginal people. His Honour found that “aboriginal persons in the Northern Territory are, in general, in considerable need of special consideration and assistance”. On the evidence in this case, this statement is as correct in 2020 as when it was made.

28. [47]

    In Common Equity Housing Ltd v Commissioner of State Revenue (Vic) (1996) 33 ATR 77 Ashley J held at 93 that providing rental accommodation at low cost to people in needy circumstances relieved poverty. This was because the overwhelming proportion of tenants had been and were persons of low income by community standards.

29. [48]

    In Community Housing Ltd v Clarence Valley Council (2015) 90 NSWLR 292; [2015] NSWCA 327, the NSW Court of Appeal held that the objects of a company limited by guarantee to acquire or manage land so that “housing may be provided to low income persons” and “households in need” conveys the notion of relief of poverty and the provision of relief to people “subject to some degree of financial necessity”.

30. [49]

    I have concluded that “the relief of poverty in Australia” in this statutory context includes at least the provision of the necessities of life, both directly and indirectly, but is not so limited. The modern concept of the “relief of poverty in Australia” encompasses assistance given to benefit persons whose lot needs improvement or who are “subject to some degree of financial necessity”.

31. [50]

    In Ballarat Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation (1950) 80 CLR 350; [1950] HCA 19 the question was whether persons could be said to be in necessitous circumstances if nothing was known of their financial position other than that, in need of hospital attention, they were unable to pay the requisite fee. At 355, Kitto J held:

32. [51]

    It is clear that a person may be within Kitto J’s description of “falling short” even if that falling short is only in the sense of being unable to meet the costs of necessary hospital treatment. That is the relief of poverty in Australia. The Commissioner’s submission to the contrary that the notion of “going short”, so far as it relates to the concept of poverty, is not concerned with crisis relief or relief of distress should be rejected. In this respect, I accept YWCA Australia’s submission that poverty is a complex state of affairs linked to various societal issues including drug and alcohol misuse and family violence.

33. [52]

    It may be accepted, as the Commissioner submitted by reference to City of Mandurah v Australian Flying Corps and Royal Australian Airforce Association (WA Division) Inc (2016) 50 WAR 466; [2016] WASCA 185 at [61] (in the context of “relief of the aged”), that “relief” connotes a need which requires alleviating, and which those persons could not alleviate, or would have difficulty in alleviating, themselves from their own resources. It is, however, unrealistic and inconsistent with the purpose of s 275 of the Duties Act to treat crisis relief for people subject to some degree of financial necessity who are suffering problems linked to various societal issues including drug and alcohol misuse and family violence as outside the concept of the relief of poverty.

34. [53]

    In Downing, Walsh J addressed an argument having at least some important similarities with a critical part of the Commissioner’s case here. The relevant clause of the will in question in Downing, after listing a number of obviously charitable purposes including “for the relief of persons in necessitous circumstances”, provided “or for the amelioration of the condition of the dependants” of members or ex-members of the navy or air force. The submission rejected by the High Court at 193 bears some similarity to that advanced by the Commissioner here:

35. [54]

    Walsh J rejected the submission (at 194):

36. [55]

    The phrase here engaged, “relief of poverty in Australia” must, in context, have regard to contemporary conceptions of poverty in Australia. I make the following findings about contemporary conceptions of poverty in Australia based on the unchallenged evidence of the president and chair of YWCA Australia, Ms Helen Maree Schell. Ms Schell explained the complex and inter-related causes of poverty in modern Australia. As I have said, I accept her evidence about the sophisticated and coordinated responses from government and charitable organisations necessary to address the myriad of issues that cause disadvantaged people, families and communities to enter into and remain in poverty.

37. [56]

    I find no difficulty in concluding that a program focused on providing housing solutions for people who are facing a real risk of homelessness is a program to “benefit persons whose lot needs improvement” and is thus one “for the relief of poverty”. The Mission Australia report, explained in context by Ms Schell, emphasised that the population at risk of homelessness includes people suffering a range of problems including domestic and family violence, elder abuse and deteriorating physical and mental health disabilities. Ms Schell gave evidence, which I accept, that addressing these endemic social and economic problems amongst people from disadvantaged backgrounds and regions of Australia is the objective of YWCA Australia’s programs.

38. [57]

    Ms Schell also drew attention to the ACOSS Poverty Report 2020. The Commissioner in final address sought to use the ACOSS Poverty Report in support of a submission that as, for example, women and girls as a group comprised 53% of all people in poverty, it somehow followed that YWCA Australia’s programs aimed at addressing the urgent needs of women and children fleeing family violence were somehow not “for the relief of poverty”.

39. [58]

    I find that programs providing relief by YWCA Australia to women fleeing family violence who, at least temporarily, have nothing, having fled from their abusive partner, is “for the relief of poverty”. Temporary financial relief given to women and children fleeing family violence is the relief of “poverty” as that term is properly understood in the cases I have cited above. The temporary financial assistance provided is to meet their immediate needs, which would otherwise not be met. The recipients of aid are “subject to some degree of financial necessity”. I infer that if users of YWCA Australia’s services had any realistic choice, they would not choose to leave their homes with nothing and live in crisis accommodation. If they were truly not “persons whose lot needs improvement” they would surely decide to reside elsewhere.

40. [59]

    I do not think that attempts by the Commissioner to adopt the “poverty line” defined by the Organisation for Economic Cooperation and Development referred to by ACOSS provides any firm or reliable guide for me to determine whether YWCA Australia’s programs were for the relief of poverty. The evidence before me described real and systemic poverty among some groups of Australian women. Women made up 60% of people who presented at specialist homelessness services in 2015. A large group of women not represented in that statistic were forced to stay with friends, live in cars and in some extreme cases sleep in public toilets. The Mission Australia Report also noted particular problems for some older women maintaining stable housing.

41. [60]

    The evidence before me identified housing challenges and structural barriers for women living in regional Australia. The evidence before me is that women living in regional Australia are much more likely than men to experience economic insecurity because of a relationship breakdown, separation and divorce, and are more likely to reach retirement with a much lower superannuation balance than men. The YWCA Housing Report found that a staggering percentage of women, one in eight living in regional Australia on a low or moderate income, had been homeless in the past five years.

42. [61]

    I will address each of YWCA Australia’s programs below by reference to these findings about the meaning, in context, of “for the relief of poverty in Australia”.

43. [62]

    Before leaving this topic, and in deference to the parties who spent considerable time on them, I will explain why I approach the Canadian cases relied upon by both parties with care. This is for two principal reasons.

44. [63]

    First, as Kirby J, in dissent (but not on this point), explained in the High Court in Federal Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204; [2008] HCA 55 at [107] the Canadian approach to tax exemption for charities is one of “strict construction”. As the cases I have cited above demonstrate, no such principle applies in Australia. Secondly, having regard to the clear principles permitting the attribution of meaning to the phrase “the relief of poverty in Australia” explained by Australian courts which bind me, I respectfully doubt that the Canadian cases add anything to the consideration of the question I am faced with.

45. [64]

    To the extent that the most important of the Canadian cases referred to, Family Service Association of Metropolitan Toronto v Ontario Regional Assessment Commissioner, Region No 9 [1995] 23 OR (3d) 382; and Re Canadian Centre for Torture Victims (Toronto) Inc v Regional Assessment Commissioner, Region No 9 [1998] 36 OR (3d) 743, provide any assistance, they are broadly in line with the law about the relief of poverty in Australia.

46. [65]

    The charitable concept of education historically focused on “the improvement of a useful branch of human knowledge” (Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972] Ch 73 at 102). This is not a static concept. It extends to general education and all branches of human knowledge: Lloyd v Federal Commissioner of Taxation (1955) 93 CLR 645 at 675; [1955] HCA 71; Inland Revenue Commissioners v McMullen [1981] AC 1 at 18.

47. [66]

    Promotion of education is a very broad concept. In Lloyd the High Court described at 675 education in charity law as “wider than any category of subjects which might be thought to comprise general education as distinguished from education in specialized subjects concerned primarily with particular occupations”.

48. [67]

    In Kostka v The Ukranian Council of NSW Inc [2013] NSWSC 222, Young AJ upheld as charitable a trust in favour of women of Ukrainian ethnicity to assist those women and “spread that culture to further the community purposes of a group of Australians of a certain ethnic origin”.

49. [68]

    Numerous authorities have indicated that education is not limited to formal education of an academic or technical kind. Education extends to information or training provided in a structured manner for a genuinely educational purpose, that is, to advance the knowledge or abilities of the recipients. In Greater Wollongong City Council v Federation of New South Wales Police Citizens Boys Clubs (1957) 2 LGRA 54 at 63, Brereton J held that the respondent federation, directed as it was to the provision of healthy recreation for boys and their instruction in good citizenship was charitable under the education head.

50. [69]

    Perhaps ironically, whilst the Commissioner accepted that the meaning of “promotion of education” was reasonably broad, he called in aid a Canadian case which it was submitted had held that counselling services related to pregnancy testing, prenatal and postnatal care, were not the “promotion of education”: Alliance for Life v Minister of National Revenue [1999] 3 FC 504. I have already explained that I approach these Canadian cases with care. In any event the part of this case to which the Commissioner referred is actually authority only for the presently irrelevant proposition that a telephone service that offered information that, it was alleged, focused on the provision of anti-abortion information was not:

51. [70]

    On the basis of the authorities, I have concluded that structured programs that involve imparting skills to women and girls to enable them to become better functioning members of society fall into the category of “promotion of education in Australia”.

52. [71]

    Despite the criticisms levelled at the Canadian authorities in relation to the relief of poverty, a theme of the Commissioner’s submissions was that “the jurisprudence in the context of charitable law reveals that the fourth head, more so than the other heads of charity, has proven the catalyst for the development of charity law, primarily being the class under which the courts have reflected the relevant changes in societal conditions” referring to Vancouver Regional FreeNet Association v Minister of National Revenue [1996] 3 FC 880 per Decary JA. See also G E Dal Pont, Law of Charity (2017, 2nd ed).

53. [72]

    Despite the principal reference having been drawn from Canada, I am prepared to accept that the broad fourth category of charity described in Pemsel has been the most important class under which the courts have “reflected … changes in societal conditions”. It does not follow, however, that either the “relief of poverty” or “the promotion of education” have remained static and unresponsive to changes in society. Any such conclusion would be inconsistent with the weight of authority, including High court authority, I have cited above.

54. [73]

    The “use” of resources draws attention to how resources are expended. Ward CJ in Eq observed in Salvation Army (at [146] and [149]) that the requirement that resources be used predominantly for the specified purposes was satisfied in that case because “approximately 75% of the financial and personnel resources of [the relevant organisations] combined [were] expended on social work programs with the object of relieving poverty”. I reject the Commissioner’s submission that her Honour was thereby limiting the circumstances whereby resources of an organisation were used predominantly for the specified purposes as limited to 75% of the total resources of that entity.

55. [74]

    I agree with her Honour that the concept of “resources” encompasses financial resources and share her Honour’s doubts (at [150]) about the proposition that the concept of “resources” in context encompasses the personnel of the institution or organisation as well.

56. [75]

    Ryde Municipal Council v Macquarie University (1978) 139 CLR 633; [1978] HCA 58 at 643 is authority for the proposition that if the use which the charity makes of the land is wholly ancillary to or directly facilitates the carrying on of its charitable objects, that is sufficient to satisfy the requirements that premises are used for charitable purposes. As I will shortly explain, the Song Hotels are being used for a purpose which directly facilitates the charitable objects of YWCA Australia. YWCA Australia operates the Song Hotels for the purpose of raising funds to pursue its charitable objects. YWCA Australia’s use of the land for these hotels is directly facilitating its carrying on of its charitable objects and is within the principles that these cases accept as being a relevant use of the land.

57. [76]

    Word Investments was a case about whether Word Investments Ltd could be endorsed as exempt from income tax on the basis that it was within one of the categories in s 50-52 of the Income Tax Assessment Act 1997 (Cth). To determine whether a body is within a category entitling it to endorsement, the Court examined not just the objects but also the activities of the body. Having done that, the Court concluded at [26] that the focus is on how the objects are being pursued:

58. [77]

    In Word Investments it was accepted that conducting activities of that nature for the purpose of funding charitable activities is to be seen as a charitable purpose, that is the purpose of a charitable nature to which those revenues and profits are to be directed.

59. [78]

    I will return to Word Investments below but note that the Commissioner submitted that the case was wholly distinguishable here. I disagree. Taking into account what at the very least is carefully reasoned dicta from the High Court of Australia is not to fall into the error of reading the words to be defined in the phrase “charitable or benevolent body” as relevant to the process of construction: The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54. In the present case, the defined term commences by identifying “any body corporate, society, institution or other organisation” which predominantly uses its resources in accordance with its constitution for the identified purposes. The Commissioner’s submission that Word Investments is irrelevant because it addresses only the question of whether a body is within a category entitling it to endorsement as a charity should be rejected. Word Investments is of assistance in addressing the question of construction posed here.

60. [79]

    The correct approach in the present context is to understand the phrase “wholly or predominantly” as importing an evaluative standard. This is a question of characterisation; does YWCA Australia conduct its activities, as shown by the way it uses (i.e. expends) its resources, wholly or predominately for the exempt purposes?

61. [80]

    The Commissioner submitted that the phrase “wholly or predominantly” is a single composite phrase conveying a single concept. “Wholly or predominantly” in s 275(3)(a) was submitted to mean that the relevant body must wholly use its resources for the specified purpose(s), which nevertheless apprehends some incidental or ancillary (otherwise) non-qualifying purpose or use of its resources. The Commissioner, however, accepted that this identical submission was rejected by Ward CJ in Eq in Salvation Army. The Commissioner in writing expressly disclaimed any submission that this Court should not follow Ward CJ in Eq in this respect:

62. [81]

    In any event, I agree with Ward CJ in Eq that for resources to be used “predominately” for specified purposes the purpose must be “the most dominant of the purposes of the institution or organisation”: Salvation Army at [148]. Ward CJ in Eq in Salvation Army rejected the Commissioner’s argument in that case that a use or purpose will only be predominant if no other use or purpose is more than incidental at [90] and [147]-[148]. I do so here.

63. [82]

    This conclusion is consistent with the approach taken in analogous contexts:

    1. (1)

       in Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (Cth) (1990) 23 FCR 82 Lockhart J at 95 and Foster J at 123 held that a club would fall within s 23(g)(iii) of the Income Tax Assessment Act 1936 (Cth) if its main or predominant purpose was the promotion of sport and the mere fact that it had an independent secondary purpose would not be fatal; and

    2. (2)

       in Word Investments at [17] it was held “… it is necessary to see whether its main or predominant or dominant objects, as distinct from its concomitant or incidental or ancillary objects, are charitable”.

64. [83]

    In seeking to identify the extent to which YWCA Australia has, in the course of pursuing its charitable objects, used its “resources” for exempt purposes rather than non-exempt purposes, the focus is on YWCA Australia’s financial resources.

65. [84]

    In relation to the assets held by YWCA Australia’s community housing subsidiaries, the Commissioner’s contention was that membership of the subsidiaries did not confer a proprietary interest in their property, referring to Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168; [1999] NSWCA 113 at [78]. Accordingly, it was submitted that YWCA Australia’s relevant “resources” do not include the assets of its subsidiary entities. The argument was advanced by reference to decisions of the Full Federal Court in Federal Commissioner of Taxation v Tasman Group Services Pty Ltd (2009) 180 FCR 128; [2009] FCAFC 148 at [55] and Federal Commissioner of Taxation v Co-operative Bulk Handling Ltd (2010) 189 FCR 322; [2010] FCAFC 155 at [58], [78] and [84] and the subsequent judgment of Black J in Grain Growers Ltd v Chief Commissioner of State Revenue [2015] NSWSC 925 at [74]. Co-operative Bulk Handling was concerned with whether the taxpayer was exempt from income tax by reason that it was an “association established for the purpose of promoting the development of [specified] resources” under s 50-40 item 8.2 of the Income Tax Assessment Act 1997 (Cth): see [5]-[6]. The taxpayer had subsidiaries that carried on commercial operations. Mansfield and McKerracher JJ observed that it was unhelpful to consider the contribution of the subsidiaries because “the Act is considering the purpose of [the taxpayer] not that of other companies of which it is a shareholder”: at [78]. The relevant test was concerned with the purpose of establishment of the taxpayer rather than how it used its “resources”.

66. [85]

    Grain Growers was concerned with the purpose of the organisation rather than how it used its resources. In that case (at [11]), the issue was whether the taxpayer was “a non-profit organisation having as its sole or dominant purpose a charitable … purpose (but not including a school, an educational institution, an educational company or an instrumentality of the State)” as per the Payroll Tax Act 2007 (NSW), s48(1)(c). Black J’s observation in that context at [74] that the commercial activities of subsidiary entities could not affect the conclusion as to the relevant purpose of the taxpayer was, with respect, entirely correct. It is however not to the point in the present context.

67. [86]

    Whilst I do not regard the authorities referred to by the Commissioner as mandating the answer to the question of identification of YWCA Australia’s resources for the purposes of the application of s 275(3)(a), I have nevertheless concluded that the assets of YWCA Housing and YWCA National Housing were not resources used by YWCA Australia. As I will explain, the answer to this question does not affect the outcome of the case in any event.

68. [87]

    The legislative history of s 275 of the Duties Act demonstrates that the purpose of the “predominately” requirement was to ensure that bona fide charitable organisations would be entitled to claim exemption from duty where their activities were wholly or predominantly for the exempt purposes, which is to be evaluated by reference to how the organisation’s “resources” are used. The selection of the appropriate methodology in a given case will be determined by the nature of the activities of the charitable entity.

69. [88]

    The original antecedent to s 275 was item (24) inserted into the Second Schedule of the Stamp Duties Act 1920 (NSW) by the Stamp Duties (Further Amendment) Act 1980 (NSW) at the time that 1920 Act was amended to abolish the Sixth Schedule which had previously applied to impose a higher rate of ad valorem duty to conveyances of property by way of gift than the usual ad valorem rate under the Second Schedule (where the conveyance was not by way of gift). Under s 66(3), there was an exemption from duty under the Sixth Schedule for “gifts to a public hospital or for the relief of poverty or the promotion of education in New South Wales”. The removal of the Sixth Schedule meant that a conveyance of property by way of gift would be liable to duty at the Second Schedule rates and so a new exemption was needed, which took the form of item (24) of the exemptions at the end of the Second Schedule. The terms of item (24) and the relevant passage from the extrinsic materials is found in Salvation Army at [123]-[124].

70. [89]

    The form of item (24) follows closely the terms of the exemptions applicable to three other heads of charge in the Second Schedule of the 1920 Act which had been introduced in 1966 by Stamp Duties (Amendment) Act 1966 (NSW). These heads of charge were:

    1. (1)

       bills of exchange, promissory notes and cheques;

    2. (2)

       policies of insurance; and

    3. (3)

       receipts.

71. [90]

    Each exemption was enacted in a form similar to what became item (24) and later s 275(3)(a), that is, an exemption was conferred on (inter alia) an approved society or institution “whose resources are in accordance with its rules or objects used wholly or predominantly for” specified purposes including the relief of poverty and promotion of education: see Stamp Duties (Amendment) Act 1966 (NSW), subss 5(b), (c) and (d).

72. [91]

    In the Second Reading Speech of the amending Bill in the NSW Legislative Assembly on 6 December 1966, the Premier and Treasurer, the Hon Mr Askin, stated that:

73. [92]

    The Premier and Treasurer then continued from 3211-3212 as follows:

74. [93]

    These passages indicate that the amendments were intended to achieve three objectives. First, to clarify that organisations do not qualify for the exemption simply because they are non-profit making. Second, to ensure that bona fide charitable organisations are granted exemption from duty on the three main forms of instruments then subject to duty. Third, to remove doubt as to eligibility for the exemption by making the deciding factor in the statutory inquiry “the extent to which an organisation’s activities may be deemed to be charitable”.

75. [94]

    This context supports the conclusions about the construction of s 275(3)(a) based on the text of the provisions that I have identified above.

Findings of fact

1. [95]

   My principal findings of fact are set out in this section of the judgment. Additional facts, where necessary, are also found in other sections. In making these findings I have had regard to the voluminous documentary evidence, almost all of which was admitted without objection and was not the subject of cross-examination or contradiction by evidence filed by the Commissioner. In making my findings of fact, I have also drawn inferences from those primary facts.

2. [96]

   As, in a sense, the profit-for-purpose hotel businesses are at the centre of the dispute between the parties I will commence by making findings of fact relevant to those businesses. It will be necessary when describing how it was that the parties approached the question of proof of the statutory exemption to explain the role of the profit-for-purpose hotel business, comprising the Song Hotels in Wentworth Avenue and Redfern in Sydney.

3. [97]

   The evidence is clear that the Song Hotels were used in the past by YWCA NSW to generate revenue for it to give effect to its principal objects. Since 18 March 2018, the date of the scheme of arrangement, I am satisfied that YWCA Australia has used the Song Hotels to generate revenue in furtherance of its objects, being the relief of poverty and the promotion of education. I am satisfied that the Song Hotel businesses are conducted for the sole purpose of earning profit to be spent in pursuit of YWCA Australia’s purposes. As I will make clear in what follows, I find that YWCA Australia’s purposes are the relief of poverty and the promotion of education. I am satisfied that YWCA has “used” the resources comprised by the Song Hotel businesses for the relief of poverty and the promotion of education. On a broad evaluative approach to the issue raised by s 275(3)(a) that conclusion is sufficient for YWCA Australia to succeed.

4. [98]

   The Commissioner’s principal submission in this area of the case was that the “use” of resources referred to in s 275 must be the direct and immediate use of resources for the purpose of the relief of poverty and/or the promotion of education. Thus, the Commissioner submitted that what was said in Word Investments in the High Court provides no assistance to me here.

5. [99]

   I reject the Commissioner’s submission. The relevant question is: what was the purpose for which the Song Hotels were “used” by YWCA Australia? The requirement of direct immediacy is an unwarranted gloss on the statute. In Word Investments an entity was set up to generate income for making gifts to charitable bodies. The question was whether the fundraising entity, a separate company, could be said to be itself a charitable body. The plurality said:

6. [100]

   I accept YWCA Australia’s submission that in Word Investments the plurality effectively looked through the intermediate step or purpose, which was to raise money, to the ultimate object or purpose of the activity, which was to raise money to use for charitable purposes. Although the statutory context is different, the approach of four judges of the High Court on a closely analogous question is, at the very least, highly persuasive. No good reason was advanced by the Commissioner for me to depart from that view.

7. [101]

   As I will explain in addressing the expert evidence, the Song Hotel businesses here, as in Word Investments, are not inconsistent with the predominant use of YWCA Australia’s resources in pursuit of its objects.

8. [102]

   In conducting an analysis of YWCA Australia’s expenditures to assess whether the resources of YWCA Australia are used solely or predominantly for the relief of poverty or the promotion of education, it does not make any sense to assume the expenditure on the hotel businesses to be a non-exempt purpose in the examination of YWCA Australia’s spending on its programs to try and ascertain those charitable purposes. The attempt by the Commissioner to do so led to an unhelpful circularity. A tool to determine the relevant question was thereby sought to be converted into an a priori conclusion.

9. [103]

   A subsidiary submission made by the Commissioner was that I could not be satisfied that the funds generated by the Song Hotel businesses were “used” by YWCA Australia for any particular YWCA program and thus I could not be satisfied that the funds generated by these businesses were used for the relief of poverty and/or the promotion of education. As I will explain, the programs conducted by YWCA Australia were, other than in immaterial respects, all conducted for the relief of poverty and/or the promotion of education. I am comfortably satisfied that the funds generated by the Song Hotel businesses were and are “used” by YWCA Australia for the relief of poverty and/or the promotion of education.

10. [104]

    As I will explain in dealing with the expert evidence, even if expenditure on the Song Hotel businesses is assumed to be for a non-exempt purpose, YWCA Australia would still be entitled to succeed in having the Commissioner’s assessments set aside.

11. [105]

    At the time of the Scheme of Arrangement, by reason of regulatory requirements in Victoria and Queensland, the assets of two entities, YWCA Housing and YWCA National Housing, were not directly transferred to YWCA Australia. Rather, those entities were transferred to YWCA Australia which became the sole member of each company limited by guarantee. YWCA Housing and YWCA National Housing became wholly owned subsidiaries of YWCA Australia. YWCA Australia is the sole member following the merger. YWCA Australia thus had the ability to control each company, including the power to dismiss and appoint their directors.

12. [106]

    I find that each of YWCA Housing and YWCA National Housing was wholly engaged in the relief of poverty in Australia. The relevant question here is not whether YWCA Housing and YWCA National Housing were “assets” of YWCA Australia but rather whether they comprised “resources” which were being used “for” the purposes of YWCA Australia.

13. [107]

    Whilst I am sympathetic to YWCA Australia’s submission that the mere fact that the assets are held in a separate legal entity does not necessarily compel a conclusion about characterisation as part of the “resources” of the YWCA Australia itself, I have concluded that the facts that the assets are held in a subsidiary entity of the taxpayer means that the statutory criterion of use of its resources is not satisfied. It is not a “resource” used by YWCA Australia.

14. [108]

    The doctrine of separate legal personality means that YWCA Housing and YWCA National Housing are separate entities to YWCA Australia. I do not think that the guidance provided by the High Court drawn from the family law context in Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 provide much assistance.

15. [109]

    Finally, as I will explain, whilst I have concluded that YWCA Housing and YWCA National Housing are, relevantly, not resources used by YWCA Australia, I would nonetheless conclude that YWCA Australia is entitled to the s 275 exemption.

16. [110]

    In what follows I will set out my principal findings of fact about the programs conducted by YWCA Australia. In making these findings I accept the evidence, largely uncontested, led by YWCA Australia and have drawn inferences about the programs the subject of that evidence that clearly arise from that evidence and the contemporaneous documents forming part of Exhibit A.

17. [111]

    The programs conducted by YWCA Australia may be divided for present proposes into three categories; first, those programs the Commissioner accepted are within the statutory exemption; secondly, programs that the Commissioner accepted are partly within the exemption but also alleged are partly charitable within the fourth limb of charity described in Pemsel and thus outside the statutory exemption; and finally, programs that the Commissioner submitted are completely outside the statutory exemption. There are a small number of programs (of immaterial value) where YWCA Australia accepted that the purposes are not within the exemption.

18. [112]

    The Commissioner accepted that several programs run by YWCA Australia met the statutory test for the exemption. The Commissioner accepted the following programs as promotion of education. Having independently considered the evidence I find that this concession was correctly made.

19. [113]

    Every Girl is a leadership program that aims to develop the leadership capacity and confidence of young girls in years six and seven from low socioeconomic backgrounds. The program involves eight weekly modules of 90 minutes per session with various learning styles including arts, music, discussion and group activities. The program runs four times a year. Every Girl is delivered in the Playford and Onkaparinga regions of Adelaide through funding from Communities for Children.

20. [114]

    This program is run for children aged 10 to 12 in the Onkaparinga region of Adelaide through funding from Communities for Children. The aim of the program is to give young people the tools and support to develop, promote and perpetuate equal, safe and respectful relationships.

21. [115]

    This program works with children in years six to 11 to build resilience and confidence to manage emotions, change and conflict at school and at home. The program also has a case management component for families dealing with poverty and family violence and a referral pathway to support services.

22. [116]

    This is a seven month professional development program for 25 women annually with workshops, mentoring and conference involvement to support the development and understanding of skills for leadership in young women.

23. [117]

    This is an eight week leadership program aimed to strengthen the skills and confidence of young women in years 10 to 12, attended by mainly public school students from regional South Australia and metropolitan Adelaide.

24. [118]

    This is a specialist homelessness service for vulnerable young parents who are homeless or at risk of homelessness in the Sydney district. This program is funded by a Program Level Agreement between the Minister for Family and Community Services and YWCA NSW.

25. [119]

    This youth program is delivered in two sites twice a week in Broken Hill for young girls to learn about communication, conflict resolution and homework strategies.

26. [120]

    This transition to school program supports families to engage with mainstream education and access support services. The program focuses on families with children four to six years old who have developmental delay, social difficulties or come from families with complex needs and who are Aboriginal or Torres Strait Islander peoples.

27. [121]

    This home visiting program is aimed at improving early literacy, numeracy and transition to school and parenting skills. The program provides employment and training for Aboriginal and Torres Strait Islander peoples across two years with further employment and training outcomes thereafter.

28. [122]

    This early intervention, school engagement program has a focus on career development, lifelong learning and educational outcomes. School retention and attendance is highlighted to develop both educational and career goals.

29. [123]

    This education re-engagement program supports disadvantaged young people to overcome barriers to education including poverty, domestic violence and homelessness through activities that promote mindfulness, goal setting and career identification.

30. [124]

    This education re-engagement program supports young people aged 11 to 13 to overcome barriers to education including poverty, domestic violence and homelessness through activities that promote mindfulness, goal setting and career identification.

31. [125]

    This is a 35 week program for girls in years nine and 10 who are at risk of disengaging from school. The program uses creative learning strategies to support students to achieve identified education and vocational goals.

32. [126]

    This school holiday program conducted for girls and young women in Port Pirie (SA) focuses on developing and strengthening leadership skills and social and community engagement. The program is designed to build self-esteem and develop leadership goals.

33. [127]

    This program provides afterschool homework support for disadvantaged children aged seven to 11. The program provides a safe after school environment where children enjoy afternoon tea, educational games, activities and literacy and numeracy support.

34. [128]

    This is an annual one day conference to inspire girls in years 10 to 12 in leadership, empowerment and breaking the barriers to non-traditional occupations and aspirations.

35. [129]

    This program targets young women in Toowoomba who are facing significant barriers to finding sustainable employment. The objective is to increase employment participation and reduce dependency on government support.

36. [130]

    This is a young women’s leadership program for potential future female school leaders in year nine. It focuses on developing leadership skills by raising self-confidence and resilience through strengths based on team work and decision making. The program is delivered to 10 students per school one day a week over an eight week period of school term.

37. [131]

    This child protection education program is open to students from kindergarten to year 10 and focuses on recognising abuse, power in relationships and protective strategies.

38. [132]

    This youth program is delivered in two sites in Broken Hill each week for young girls to learn soft skills such as communication, conflict resolution and homework strategies.

39. [133]

    The Commissioner accepted the following programs as being for the relief of poverty. Having independently considered the evidence I find that this concession was correctly made.

40. [134]

    This program provides housing information and referral services to women over the age of 55 who are homeless or at risk of homelessness. The program provides a specialist caseworker to provide links and referral services such as financial advisors, physical and mental health organisations, drug and alcohol services, domestic violence counsellors, vocational training and employment services. A flexible brokerage assists women with rent arrears, utility accounts, storage, removalists and essential items such as food and clothing. Street Smart is another program run in conjunction with the Pathways to Independence program.

41. [135]

    This specialist homelessness service in the inner city of Sydney provides case management support to young people, men, women and families in order to reduce the time they spend homeless and to support them to find long-term housing options. The program seeks to engage people as early as possible and supports clients living in severe crisis and transitional properties in the inner city.

42. [136]

    The Commissioner and YWCA Australia disputed whether most of the programs run by YWCA Australia were for the promotion of education and/or the relief of poverty. The Commissioner accepted that each of the programs were charitable but submitted that they were, in whole or in part, within the “fourth head” of charity from Pemsel.

43. [137]

    It will be recalled the four heads described in Pemsel at 538 were:

    1. (1)

       the relief of poverty;

    2. (2)

       the advancement of education;

    3. (3)

       the advancement of religion; and

    4. (4)

       other purposes beneficial to the community.

44. [138]

    The Commissioner submitted that the following programs fell under the fourth head of Pemsel and were not programs “for the relief of poverty” or the “promotion of education”. I reject the Commissioner’s submission. As I will explain, each of the relevant programs is clearly within the relief of poverty and/or promotion of education limbs of Pemsel.

45. [139]

    The Asista program is a mentoring program targeted at girls aged 12 to 18 years in the child protection system. In each case there has been a child protection report made. This means that the client is in a violent home or has been sexually assaulted. The child is at risk. The mentoring program matches young women within the child protection system with a volunteer female mentor who provides strong ongoing support and training. The mentor educates the mentee about choices, staying engaged with education, learning about leadership and self-esteem. The program is designed to provide encouragement for the mentees not to go into the juvenile justice system. I find that this program plainly promotes education. The Commissioner’s submissions to the contrary did not engage with the educational core of this program. Rather, the Commissioner’s submissions picked out in a selective and quite unfair way references from the literature to “friendship, support and fun” and “social and recreational activities” to support a submission that therefore YWCA Australia had not proven that the program was for the relief of poverty or the promotion of education.

46. [140]

    To take young women from the child protection system and educate them in a structured way by providing them with the skills to succeed in staying out of the juvenile justice system is in my view the promotion of education within the meaning of the section.

47. [141]

    YWCA Australia provides Domestic Violence Intervention Services on behalf of the State of New South Wales acting through the Department of Family and Community Services. This is a crisis support service. YWCA provides support and information services co-located at Nowra police station for victims of family violence. Victims are provided services by specialist family violence caseworkers to support them through the initial crisis or event and to provide specific funding to support the client’s needs in the crisis, such as securing emergency accommodation, basic needs and travel to their community of origin. This relief is provided to women and children fleeing family violence who, at least temporarily, have nothing, having fled from their abusive partner. Temporary financial relief given to women and children fleeing family violence is plainly the relief of “poverty” as that term is properly understood in the cases I have cited above. The temporary financial assistance provided is to meet their immediate needs, which would otherwise not be met. All women and children who are experiencing domestic and family violence in the Shoalhaven area are eligible to access the program. In the program, 56 people identified as Aboriginal and Torres Strait Islander, 30 people as culturally and linguistically diverse, and 30 as living with disability.

48. [142]

    The Commissioner’s principal submission was that the eligibility criteria do not relate to “poverty”; rather eligibility is determined by whether the person has experienced domestic violence. I reject the submission. Counselling, accommodation and money for emergency expenditures provided to women and children who have fled their homes, often terrified and at night, to escape violence is plainly “for the relief of poverty”. Any person not truly in need would not flee their home and seek shelter and temporary accommodation at the Nowra police station. No doubt for this reason the NSW Department of Family and Community Services funds YWCA Australia to provide that service to women and children who arrive at Nowra police station in need. This program is for the relief of poverty.

49. [143]

    This crisis assistance program provides 24/7 on call crisis services in the Shoalhaven area and provides specific funding to support the client’s needs in the crisis, such as securing emergency accommodation, basic medical needs and travel to their community of origin. The program also allows women to go into the police station with the support of YWCA Australia and find out whether a partner has a previous record of domestic violence.

50. [144]

    The Commissioner made the same submission as at [142], which should be rejected for the same reason. Counselling, accommodation and money for emergency expenditures provided to women and children who have fled their homes, often terrified and at night, to escape family violence is “for the relief of poverty.”

51. [145]

    At the risk of repetition, to provide crisis assistance to women and children fleeing family violence is to provide a “helping hand” to people in need who are without the means to feed, clothe and house themselves by reason of their circumstances.

52. [146]

    The Domestic and Family Violence Centre assists families living in Darwin who are fleeing domestic and family violence. Women and children fleeing family violence are provided with housing and group education on how to stay safe. Education about risk management, financial literacy, child care and parenting is also provided. The Centre provides up to three months safe house crisis accommodation, domestic violence safety planning, referrals, information, individualised plans and support.

53. [147]

    The Commissioner submitted that in providing a “refuge” for at-risk women and children, eligibility is not determined by poverty but by experiencing domestic violence. The Commissioner submitted that this is not the relief of poverty but the relief of “mere” distress.

54. [148]

    I reject the Commissioner’s submission. It may be that there are programs designed to assist women and children suffering family violence who have no financial need. This is not such a program. If the women and children being assisted by the service were not suffering poverty, in the sense of extreme and immediate financial hardship, it is inconceivable that the women being assisted would choose to live in crisis accommodation in Darwin and find it necessary to accept emergency funding to provide necessities for their children. This program is for the relief of poverty.

55. [149]

    This program targets families and children who are experiencing crisis due to domestic and/or family violence and have child protection involvement, providing intense support to increase safety and stability for the families. The program provides specific funding to support the client’s needs in the crisis. This program also targets families and children who are experiencing domestic violence and provide a “child and family support service” to seek to prevent children entering or remaining in child protection and the out of home care system.

56. [150]

    I reject the Commissioner’s submission that the resources used in the program are for a fourth head charitable purpose. The submission that the eligibility criteria do not relate to poverty but instead relate to whether a person has experienced domestic violence and/or child protection issues rather misses the point. I can imagine a program designed to address family violence targeted at relatively wealthy women who, in comparison to the women engaged in these programs, may well have virtually unlimited choices about where to live, how to feed their children and how to access services available to prevent further violence occurring. In the circumstances of this case, however, the women and children targeted by the scheme are suffering poverty, in the sense of immediate and significant financial need. The program is aimed at alleviating that need. I find that this program is for the relief of poverty.

57. [151]

    This program involves assisting women with children aged 12 years and under living in the Wingecarribee local government area to remain safely in their home or find safety in a new place. Services include supporting women to establish and maintain a safety plan, secure safe accommodation, financial assistance, parenting programs and support. This program was funded through a program level agreement between the Minister for Family and Community Services on behalf of the State of New South Wales and YWCA NSW.

58. [152]

    I reject the same submission made by the Commissioner for the same reasons as in relation to the Early Intervention and Placement Program discussed at [150] above. I find that this is a program for the relief of poverty.

59. [153]

    The Keeping Women Safe in their Homes program is designed to undertake risk assessment, safety planning and security upgrades for women and children experiencing domestic and family violence so that they can stay in their own homes, or a home of their choice, where it is safe to do so. This program is for women who have stayed in their homes after having a partner removed from their home through an Apprehended Violence Order, incarceration or other coercive means. YWCA Australia works with clients to install flood lights, enhanced security and deadlocks. YWCA Australia also provides education to clients about how to stay safe. A case management plan is prepared to address safety planning and making the referrals needed for counselling or childcare. This service was funded by the Northern Territory of Australia through its agency the Department of the Attorney-General and Justice and YWCA of Darwin.

60. [154]

    The Commissioner submitted that the program is focused on assisting women and children who have suffered from domestic violence by undertaking a “risk assessment, safety planning and security upgrades” so that they can stay in their own homes and was thus neither for the “relief of poverty” or the “promotion of education”. I think this is a far too limited a description of the program. I can imagine programs to educate and keep terrified but relatively wealthy women and children safe from partners subject to Apprehended Violence Orders, incarceration or other coercive means. This is not such a program. The alternative to success for the women in this program is life in a shelter or homelessness.

61. [155]

    I find that an inability to afford measures to keep a family safe from a violent partner may fairly be regarded as necessities for the clients of this service, as distinguished from things which are merely desirable advantages. I find that this program is for both the relief of poverty and the promotion of education.

62. [156]

    The Medical Accommodation Program consists of accommodation at Barbara James House and Dr Helen Philips Cottages in Darwin. The program provides accommodation to people and their carers who need to travel from remote and regional areas in the Northern Territory to access medical facilities at Royal Darwin Hospital.

63. [157]

    Barbara James House provides accommodation for guests accessing cancer-related treatment from remote and rural areas. The facility provides guests three meals per day and is staffed 24/7. Dr Helen Philips Cottages offer guests from remote and regional areas a “home away from home” in one of six three-bedroom houses located within close proximity of the Royal Darwin Hospital. The properties cater to people and approved carers accessing medical or dental treatment.

64. [158]

    This program provides accommodation for people who come from remote and regional areas of the Northern Territory to Darwin to attend oncology and other urgent medical appointments. This program is restricted to people who are unable to afford to stay in private accommodation and who would otherwise not be able to get treatment because it is not available in their home community and they have nowhere to stay in Darwin. In addition to accommodation, there are workers who provide referrals, information and support services 24/7.

65. [159]

    The Commissioner submitted that the resources used in this program are used to provide accommodation to people who require medical treatment at the Royal Darwin Hospital who need to travel to Darwin from remote and regional areas, as well as the families and carers of those people. The Commissioner submitted that the eligibility criteria makes it clear that it has no criterion which relates to poverty. I reject the Commissioner’s submission. The program is limited to people in need of urgent medical care for life threatening conditions which cannot be obtained in their home communities. Their lack of financial means has the effect that they would be unable to access the treatment as they have nowhere else to stay in Darwin. I find that that this program is clearly for the relief of poverty.

66. [160]

    This is a domestic violence program that assesses victim safety, makes referrals and coordinates services for women at significant risk of harm, in most cases without financial support and either in poverty at the time or at risk of ongoing poverty, homelessness and violence. Victims have a single contact point who links them with services and provides threat assessments, case coordination and referrals to a safety action meeting if necessary. The program is for women above 16 years of age referred through the Central Referral Point in the Shoalhaven region.

67. [161]

    I reject the Commissioner’s submission that this program is charitable only within the fourth limb of Pemsel. The focus upon what the Commissioner describes as the eligibility criteria is far too narrow. I find this was a program for the relief of poverty.

68. [162]

    This service, run under an agreement between Legal Aid NSW and YWCA NSW, assists women and children whose lives are affected by domestic and family violence to obtain legal protection through Apprehended Domestic Violence Orders and provides support and referrals. The program assists women and children who have experienced or are experiencing domestic violence to obtain effective legal protection, facilitates their access to a network of professional services to assist them with other legal and social/welfare needs and assists in building community capacity to respond effectively to domestic violence.

69. [163]

    I reject the Commissioner’s submission that this program provides support and assistance to victims of domestic violence and that the eligibility criteria makes clear that no criterion relates to poverty. This program was for the relief of poverty.

70. [164]

    The services the subject of this program are provided in the Toowoomba area to 32 individuals who are all on the disability support pension. YWCA Australia is a service provider to people with disability through the NDIS. YWCA Australia is paid a fee for providing these services. The program aims to ease the burden of poverty and socioeconomic disadvantage and increase social inclusion by working directly with clients to increase their capacity to participate within their community, to support them living independently and in obtaining and keeping work or volunteering. YWCA Australia has 45 support workers providing care, a rostering worker who rosters staff, a regional manager who oversees the risks associated with a disability program, and three care coordinators who manage the plans and train support workers to deliver a quality service. Many participants are from a low socio-economic background and do not have access to private care or to travel for care. They rely on YWCA Australia to deliver that care through the disability insurance scheme.

71. [165]

    The Commissioner submitted that the program is directed towards assisting and caring for people with disability because of their age or another reason. The Commissioner submitted that the relief of people with disability without more is not the relief of poverty. This characterisation of the program is incorrect. I do not suggest that all services provided by the National Disability Insurance Scheme are for the relief of poverty but this program, targeted at individuals on the disability support pension residing in one of the most disadvantaged areas of Australia, was for the relief of poverty.

72. [166]

    The Y Connect Project seeks to assist women living with disability in seeking employment and career development. The program combines group teaching and individual mentoring to assist in the expansion of employment and career opportunities for participants.

73. [167]

    The Commissioner submitted that there were no eligibility criteria for the program related to poverty and that anyone identifying as living with disability is eligible for the program. The Commissioner’s focus is misplaced. I can imagine, I suppose, a program aimed at enhancing career opportunities for relatively wealthy women living with disability. This is not such a program. I find that this program was both for the relief of poverty and the promotion of education.

74. [168]

    The Youth Diversion Program is a joint collaboration between YWCA Australia and the Northern Territory Youth Diversion Police Unit. It is aimed at diverting young people aged 10 to 17 from the justice system by providing case management and support to assist young people to address the underlying reason for their offending behaviour. Youth Diversion staff develop case plans for each young person. Clients have weekly contact with their case worker and undertake the diversion conditions that have been identified, which can include community service, apology letters, counselling and education activities.

75. [169]

    The Commissioner submitted this program aims to “divert youth away from the formal justice system and the courts” through the development of case plans, conferences, community service and counselling. The Commissioner submitted that the resources used in this program are used for a Fourth Head purpose. I disagree. Providing structured mentoring and teaching for a vulnerable young person about making good choices and staying out of the criminal justice system is the promotion of education.

76. [170]

    This is a mentoring program for at-risk students in high school. The program encourages young people to engage with community volunteers on projects that are publicly displayed. The program educates students about community volunteer networks, building self-esteem and skills and assists in gaining employment. Young people participating in Youth Frontiers receive a minimum of 35 hours mentoring, including at least 10 hours of one-on-one mentoring.

77. [171]

    I reject the Commissioner’s submission that there was insufficient evidence to conclude that this mentoring program impacts the “useful branch of human knowledge”. I regard educating Australia’s young people otherwise at risk of falling into the criminal justice system and providing them with skills with which they can gain meaningful employment as for the promotion of education.

78. [172]

    This lodge is used to provide accommodation to older single Aboriginal women who are homeless or at risk of homelessness. The clients are women who have just arrived in Darwin from remote parts of the Northern Territory.

79. [173]

    These older Aboriginal women have recently come out of violent relationships. The objective of the program is to keep these Aboriginal women safe while working with them to return them safely to their community. A wet weather respite service is also provided. This is a temporary accommodation service for women, children, families who are sleeping rough, with a few days respite from wet weather during prolonged wet weather events in Darwin.

80. [174]

    I reject the Commissioner’s submission that this program is directed partly towards the relief of poverty and party towards the “prevention” of poverty for those determined to be “at risk of” homelessness. A program providing housing for otherwise homeless older Aboriginal women fleeing family violence in the Northern Territory is for the relief of poverty. The wet weather respite service, provided to those who usually sleep in parks or on the street, is also plainly for the relief of poverty.

81. [175]

    This is a specialist homelessness service which supports young people under the age of 25 who have complex needs and are at imminent risk of homelessness, as well as young people under 21 years old with complex needs who are currently homeless in the inner west area of Sydney. The program provides care, rapid rehousing assistance, outreach services and advocacy. The service is tailored to provide for cultural and religious needs and provides targeted strategies for young people exiting out of home care and those with complex needs.

82. [176]

    Providing care, rapid rehousing assistance, outreach services and advocacy for young people with complex needs at risk of homelessness in inner west Sydney is for the relief of poverty. The Commissioner’s submission to the contrary addressed a hypothetical construct of clients of this program who were relatively wealthy. I find that clients of the service are compelled by circumstances to use the service. I am satisfied that each is experiencing poverty, in the sense I have explained that term should here be understood.

83. [177]

    The Housing Support Program provides housing services for young people and older single women to obtain independent accommodation. The program targets young people aged 15 to 24 who are homeless or at risk of homelessness and older single women. The program helps secure ongoing accommodation and provides supported accommodation for 6 to 18 months.

84. [178]

    I find that this program was for the relief of poverty. I reject the Commissioner’s submission that this program by the “prevention” of homelessness, is outside the purpose of the relief of poverty.

85. [179]

    This program aims to prevent homelessness. The service works with people residing in unsustainable and unsafe accommodation to assist them with finding suitable long-term accommodation. The service identifies people at risk of homelessness and provides them with support, case management and specific funding to support and address client needs in a crisis. The service has a focus on Aboriginal and Torres Strait Islander peoples and people from culturally and linguistically diverse backgrounds.

86. [180]

    The Commissioner emphasised that the program is directed towards intervening “early to prevent homelessness” and supporting tenants “at risk of homelessness”. Therefore, it was submitted that the program is partly directed towards the “prevention” of homelessness. Whilst I accept that the Commissioner’s description is correct as far as it goes, it does not address the critical question. Shortly put, I find that all participants in this program are women whose financial resources are insufficient to enable them to obtain all that is necessary, not only for a bare existence, but for a modest standard of living in the Australian community. I find that this program, aimed at preventing homelessness especially amongst Aboriginal and Torres Strait Islander peoples and people from culturally and linguistically diverse backgrounds, is for the relief of poverty.

87. [181]

    This program provides support to young people under the age of 25 who have complex needs and are at imminent risk of homelessness as well as young people under the age of 21 with complex needs who are currently homeless in the inner west area of Sydney. The service connects vulnerable young people with education, training and employment opportunities. This service provides targeted strategies for young people leaving home care and has a strong focus on young people from culturally and linguistically diverse backgrounds and Aboriginal and Torres Strait Islander young peoples. This service is provided under a joint working agreement with Youth Off The Streets Ltd.

88. [182]

    The Commissioner emphasised that the service is partly directed towards the “prevention” of homelessness. There may be programs designed to prevent homelessness amongst relatively wealthy Australians. This is not one of them. The clients of the service are in financial need. I find that a service which prevents vulnerable young people from becoming homeless is for the relief of poverty.

89. [183]

    This service intervenes early to prevent homelessness and provide support to tenants at risk of homelessness in the South East area of Sydney. Case management and support for families is provided together with money to obtain food, clothing, accommodation and essential items. This service has a strong focus on Aboriginal and Torres Strait Islander peoples and is accessible to people from culturally and linguistically diverse backgrounds.

90. [184]

    The Commissioner makes the same submission about the program being partly directed towards the “prevention” of homelessness. I reject it for essentially the same reasons. Providing housing assistance and funds to buy necessities for Aboriginal and Torres Strait Islander peoples and people from culturally and linguistically diverse backgrounds in need is for the relief of poverty.

91. [185]

    This specialist homelessness service works with young parents who are at imminent risk of homelessness or are homeless. The program provides outreach case management and accommodation support for homeless young parents aged 16 to 24 who have accompanying children, are pregnant or are working towards the restoration of their children to their care. These families reside in or are connected to the Sydney District and most have high and complex needs, usually with histories of abuse and homelessness and other factors such as mental health problems and/or drug or alcohol misuse. Case workers build a non-judgemental relationship with clients in order to assist them in addressing the challenges and barriers that prevent them from being able to sustain safe, independent accommodation in the community.

92. [186]

    I find that this program is for the relief of poverty. I reject the Commissioner’s submission that the program is for partly for those merely “at risk of becoming homeless” and thus not for the relief of poverty. Providing accommodation support and sustained case management for homeless or at-risk young parents who have complex needs including histories of abuse, drug or alcohol misuse and/or mental health problems is for the relief of poverty.

93. [187]

    This is an early intervention project aimed at building family engagement, participation and positive life outcomes. The program facilitates the contracts of 10 Community Partner programs that tackle poverty through education outcomes, community capacity building and stronger families including ready for work skills and training and development.

94. [188]

    The Commissioner submitted that this program is directed towards building family engagement, participation and positive life outcomes and was thus not for the promotion of education. I disagree. I find that this program is for the promotion of education. I reject the Commissioner’s submission that these are recognised fourth head purposes. A project that facilitates education outcomes, community capacity building, work skills, training and development as a means of early intervention is for the promotion of education.

95. [189]

    Rise Above the Pack Workshops empower participants with the knowledge, skills and confidence to safely intervene in situations where the respect or safety of women is at risk, and to challenge anti-social behaviours based on gender inequitable attitudes. I find that this falls within the modern conception of the promotion of education. I reject the Commissioner’s submission that the program aims to educate participants with knowledge and skills to intervene in circumstances of domestic violence but is also directed towards providing “confidence” and “challenging” anti-social behaviour and gender inequality and that this is a fourth head purpose and activity. A series of workshops that educates participants on gender equitable attitudes and challenges anti-social behaviours, including training on intervening in situations where the safety of women is at risk, is for the promotion of education.

96. [190]

    This program empowers Aboriginal women to develop their leadership capacity and strengthen their contribution to their community through enhanced personal leadership skills. The program involves leadership workshops that build knowledge and skills including opportunities to gain employment or apply for leadership roles within their workplaces and communities.

97. [191]

    I find that this program is for the promotion of education. I reject the Commissioner’s submission that the program specifically addresses fourth head purposes. A series of workshops that deliver leadership training and capacity building around family, wellbeing, career and culture for Aboriginal women in regional South Australia and metropolitan Adelaide is a program for the promotion of education.

98. [192]

    YWCA Encore is a free exercise and information program specifically for women who have experienced breast cancer at any time in their lives. It is an eight week program consisting of two hour weekly sessions that include information presentation, relaxation and peer support sessions and floor and pool based exercises. Information presentations cover a range of subjects aimed at improving the knowledge and confidence of women in managing the after effects of breast cancer. In areas with high immigrant populations, sessions are conducted in the appropriate language and promoted in that language. This attracts women with common experiences and increases social bonds. This reduces the risk that their health crisis will result in isolation and depression. I find that this was the promotion of education. I reject the Commissioner’s submission that even though information to assist in breast cancer recovery is provided, the program is primarily an exercise and support program and that is a fourth head charitable purpose. An eight-week program consisting of two hour weekly sessions covering information on breast cancer recovery and exercises that aid in the recovery of breast cancer is for the promotion of education.

99. [193]

    This is a supported playgroup which provides access to support services and community networks. The program involves capacity building for families supporting development and growth of children and their families to achieve positive outcomes. The program has home visiting capacity for information, referrals and family support, including links to employment services and training opportunities. The supported playgroups deliver age appropriate activities that prioritise child developmental milestones. The playgroups focus on connecting with families from the Goonellabah and Lismore areas with dedicated playgroups for culturally and linguistically diverse and Aboriginal and Torres Strait Islander families.

100. [194]

     I find that this is for the promotion of education. I reject the Commissioner’s submission that while the evidence indicates the program is aimed to educate children through playgroups that “prioritise child development milestones” it is also aimed in part at “promoting healthy relationships between parents / carers, children and their communities”, which is a fourth head purpose. Supported playgroups that run programs focused on child development milestones and provide home visiting, referrals and links to training and opportunities is a program for the promotion of education.

101. [195]

     This program works alongside young parents and their children to provide access to opportunities for peer support groups, young parent learning groups and education support, individual parent support and pathways and referrals to education and training opportunities. The program provides group activities for young parents to strengthen their community and peer connection, to learn and share parenting skills, to develop learning and knowledge pathways and to share play and learning experiences with their children. This program also assists young mothers in the “Young Mothers are Strong Mothers” education program which allows mothers to work towards obtaining a formal qualification: CHC20112 – Certificate II in Community Services. The Parenting Support Program provides these young mothers with emotional and logistical support as well as foundational skills which in turn builds confidence and develops new skills. This program is funded through an agreement between the Northern Territory of Australia represented by the Department of the Chief Minister and YWCA of Darwin.

102. [196]

     I find that this is for the promotion of education. I reject the Commissioner’s submission that the evidence indicates the program aims to educate parents about parenting skills but is also directed towards providing “support” to those parents and assisting them to “strengthen community networks” and that these are fourth head purposes and not in the nature of education. This is a program that provides education support and training for young mothers, including support in working towards a formal qualification of a certificate in community services, which is plainly the promotion of education.

103. [197]

     This program aims to empower women involved in the justice system to implement positive lifestyle changes, re-engage with community and reduce reoffending. The Women of Worth team works alongside women and assists with reintegration into the community. This includes pre-release and up to 12 months post-release support, support to develop skills and capacity to gain employment on exiting prison, social and emotional wellbeing and education programs, monthly outreach groups, reconnection with children, family and community, crisis accommodation and long-term housing support, advocacy, domestic violence support and education, training and employment pathways. Ms Wright explained that Women of Worth is a 6-month pre-release, 12-month post-release program of which 83 to 85% of participants are Aboriginal women. As it is a prison program, all participants have been incarcerated. The program also assists the women to get back to community and could include three or four months in Darwin and then working with the women to integrate them back into their communities. The program includes group education around financial management and family and domestic violence. It also includes discussion about reconnection with children. The program also includes an Alcohol Action outreach program consisting of a three-day workshop delivered in five remote communities per year and a mentoring program.

104. [198]

     I find that this is educational in the modern concept of that term. I reject the Commissioner’s submission that, while the evidence indicates the program aims to educate participants with knowledge and training to gain employment after being incarcerated, it is primarily directed towards assisting women who have been incarcerated to re-engage with community. This includes domestic violence support, advocacy and social well-being and outreach programs. I also reject the Commissioner’s submission that the descriptions of “social skills” and “personal development skills” are ambiguous and cannot be concluded to fall within education. This is a program which works with women who have been incarcerated, largely comprised of Aboriginal women, on post-incarceration accommodation, housing support, education, training and employment pathways. It is plainly for the promotion of education and also the relief of poverty.

105. [199]

     These are violence prevention and respectful relationships programs delivered on a fee for services basis.

106. [200]

     I find that this is the promotion of education. I reject the Commissioner’s submission that no evidence had been provided that the resources used in this program are used for an exempt purpose under s 275(3)(a).

107. [201]

     This project aims to engage and empower women from African communities who are experiencing social isolation and disadvantage, specifically, women living with disability or supporting family members with disability and seniors. Growing Horizons provides support, social connection, skill development, referral pathways, information and support to access mainstream and multicultural services through group activities, information sessions and case management. The activity objective is to improve the social and economic participation of vulnerable and disadvantaged individuals and families within their communities as well as to build strong, resilient, cohesive and harmonious communities. This program was funded between the Commonwealth of Australia represented by the Department of Social Services and YWCA Adelaide.

108. [202]

     I find that this is for the promotion of education. I reject the Commissioner’s submission that the evidence indicates that this is a fourth head activities and that there is no evidence from which the Court could conclude that the resources are used for an exempt purpose under s 275(3)(a). I find that this is a project targeted at women from African communities who live with disability or are supporting family members with disability and seniors which provides skill development, referrals, information sessions and case management. This is for the promotion of education.

109. [203]

     At trial an issue arose as to how programs that were recorded as having a 0.00% proportion of total expenditure or program expenditure ought to be treated. Mr Richmond SC submitted that the 0.00% expenditure arose in two ways. First, if the expenditure on a particular program was less than 0.01% it was rounded down to zero. Secondly, if the cost centre accounting categorisation was in the prior year, some expenditure to that accounting costs centre for the fiscal year of 2019 would not have had expenditure recorded against it. In other words, there would have been expenditure and activities in prior periods. Whilst it did not come into the calculations that Ms Davitt had done, it was relevant in another way, being an indication of other programs that were being run in prior years not far distant from the 2019 year. In that respect Mr Richmond submitted that the categories were relevant to a more general evaluative analysis. I accept that submission. These programs were for the relief of poverty and/or the promotion of education.

110. [204]

     There were a small number of programs involving an immaterial percentage of YWCA Australia’s yearly expenditures that YWCA Australia conceded did not meet the statutory test. I find that those programs were an incidental and immaterial part of YYCA Australia’s program offering. Those programs were chaplaincy programs, the Equal Rights Alliance, Food for Futures, Lismore Women’s Festival, Pulse Catering, SCHIF, Women’s Melbourne Network, Yummy Community Hub and Café and FlyGirl.

Expert evidence

1. [205]

   As I noted at the outset, expert accounting evidence was before me. I commend Ms Davitt and Mr Samuel for the co-operative approach each took to the joint expert conclave and report and to the helpful way each gave evidence before me.

2. [206]

   The differences between the experts, and they were few, related to different assumptions each was asked to make, in turn based on the different assumed facts and different assumptions about legal issues.

3. [207]

   For the assistance of the Court, two ways in which an accountant could measure the “use of resources” by YWCA Australia were identified. The first was the use of assets by YWCA Australia. Mr Samuel’s view was that the preferable approach to measuring the use of YWCA Australia’s “resources” was to undertake an asset‐based analysis. Ms Davitt agreed. The experts also agreed, however, that there was insufficient material available to conduct such an exercise in this case. About the asset- based approach it was agreed in the joint report that:

4. [208]

   The second way in which the use of resources by YWCA Australia could be measured was identified by the experts as being to calculate the total expenditures of YWCA Australia in the year in which the exemption was sought and to identify as a percentage the proportion of those total expenditures each separate expenditure comprised. Subject to essentially immaterial qualifications, the experts agreed about those calculations. Whilst there was some limited dispute about the way in which head office or administrative expenditures should properly be attributed to each of the other expenditures (such as individual programs), there was no real dispute about the principles to be applied. The differences in approach led to immaterial differences in the result of the overall calculations, which were essentially agreed. Mr Samuel and Ms Davitt agreed that whilst further information would be desirable, based on the available information, Mr Samuel did not disagree with Ms Davitt’s approach to allocating overheads. Mr Samuel’s qualification was that he had not seen the material underlying the spreadsheets produced in evidence by YWCA Australia which Ms Davitt relied upon. The construction of those spreadsheets was explained in evidence before me by Ms Bhala and Ms Philips. Those explanations were not challenged by the Commissioner and I accept them.

5. [209]

   I find that the underlying data provided to Ms Davitt from which she constructed her models of the total expenditures of YWCA Australia in the year in which the exemption was sought was sufficiently reliable for me to draw firm conclusions about the “use” of YWCA Australia’s resources. I reject the Commissioner’s submission that YWCA Australia had not discharged its onus of proof about the use of its resources. In particular, I reject the Commissioner’s submission that the method of approximation of expenditure of YWCA Australia’s resources to various programs and other activities undertaken by Ms Davitt was too limited and constrained to be of genuine assistance to the Court in respect of the statutory task.

6. [210]

   The Commissioner’s criticism that the exercise Ms Davitt undertook was not based on a relevant accounting standard is misplaced. The experts agreed that the exercise Ms Davitt conducted was a legitimate one to address the question of the use of YWCA Australia’s resources. The experts agreed that such an exercise could be undertaken if the YWCA Australia board wanted to see management accounts addressing this issue.

7. [211]

   There was also limited disagreement about the correct treatment of certain depreciation:

8. [212]

   Mr Samuel agreed with those calculations. The outcome of that debate is essentially immaterial to the questions I need to decide. I will adopt the relevant valuation which takes into account depreciation and interest as more fairly reflecting an analysis of the use of YWCA Australia’s resources.

9. [213]

   In her report of 20 March 2020, Ms Davitt summarised the outcomes of her expenditure tables. Ms Davitt included revised tables in her second report, dated 28 August 2020, summarising the various scenarios:

10. [214]

    The different scenarios accorded with Ms Davitt’s instructions to “[c]alculate the amount of total expenditure of YWCA in FY2019 on the alternate bases that the total expenditure” was as follows, and when doing so, to include the amount of expenditure on each of the programs in the 2019 financial year as a percentage. The scenarios were calculated on the basis that total expenditure:

    1. (1)

       includes the expenditure of YWCA Housing and YWCA National Housing (scenario A1 - group expenditure);

    2. (2)

       is group expenditure excluding expenditure on the Song Hotels business and the NDIS (scenario A2 – group expenditure excluding hotels/NDIS);

    3. (3)

       is group expenditure excluding expenditure on the Song Hotels business only (scenario A3 – group expenditure excluding hotels);

    4. (4)

       is group expenditure excluding expenditure of YWCA Housing and YWCA National Housing (scenario B1 – YWCA expenditure);

    5. (5)

       is YWCA expenditure excluding expenditure on the Song Hotels Business and the National Disability Insurance Scheme (scenario B2 – YWCA expenditure excluding Hotels/NDIS); and

    6. (6)

       is YWCA expenditure excluding expenditure on the Song Hotels Businesses only (scenario B3 – YWCA expenditure excluding hotels).

11. [215]

    Ms Davitt prepared calculations on two assumptions. In the first, depreciation and interest expenses were excluded. Scenarios A4 to A6 replicated the above calculations in A3 to A4 and B4 to B6 replicated the above calculations in B1 to B3 but included depreciation and interest. As I have said, I propose to take into account depreciation and interest as the experts agreed that this was appropriate in conducting this exercise.

12. [216]

    I propose to adopt the approach to expenditure most favourable to the Commissioner and focus on YWCA Australia expenditure and not group expenditure. I do not suggest that it is necessarily inappropriate to test the use of financial resources of a body by reference to consolidated expenditures but in the present case a more focused assessment of the expenditure of YWCA Australia is best conducted by reference to YWCA expenditure rather than consolidated expenditure. Accordingly, it is scenarios B4 to B6 which are most useful.

13. [217]

    In selecting which of scenarios B4 to B6 best assists in answering the question of whether YWCA has used its resources predominantly for an exempt purpose, it is important to remember that the accounting evidence provides a tool to answer the statutory question but is not an end in itself. Having said that, I find that on the basis of the accounting evidence, which was essentially agreed, however the percentage of relevant expenditure is calculated, YWCA Australia’s resources were predominantly used for the relief of poverty and/or the promotion of education.

14. [218]

    It would in my view be a distortion of an exercise seeking to identify what the use of YWCA Australia’s resources was “for” to embark on a comparison of expenditures either “exempt” or “not exempt” on the assumption that expenditure by YWCA Australia on the Song Hotels was not “for” an exempt purpose. That would be contrary to my finding and consistent with the submission I have rejected that expenditure of financial resources must be “direct” and “immediate” for it to be “for” an exempt purpose. To so proceed would elevate a tool to assist to identify the “use” of financial resources of YWCA Australia, the expenditure analysis, into a means of applying the Commissioner’s construction of resources, which I have rejected.

15. [219]

    My findings about the expert evidence may be summarised as follows:

    1. (1)

       I accept the reliability of the underlying data produced in evidence by YWCA Australia;

    2. (2)

       I accept the joint expert evidence that an asset-based analysis cannot be conducted here;

    3. (3)

       I accept the joint expert evidence that an expenditure-based analysis can be conducted here; and

    4. (4)

       I accept that the expenditure-based analysis conducted by Ms Davitt (with which Mr Samuel essentially agreed) is sufficiently reliable to draw conclusions about whether YWCA Australia’s resources were used wholly or predominantly for the relief of poverty or the promotion of education.

16. [220]

    I reject the Commissioner’s submission that YWCA expenditure on the Song Hotels should be taken into account when attempting by use of this methodology to determine the use of YWCA Australia’s resources in a particular year. Given my findings about the use by YWCA Australia of the Song Hotels, the expenditure on the Song Hotels should not be assumed to be addressed to non-exempt purposes. The way in which the experts addressed this question is to leave out of the calculation expenditure on the Song Hotels. The expenditure on the NDIS program that YWCA Australia participates in should be included. Accordingly, the most appropriate scenario is B6.

17. [221]

    Applying my findings about each of the programs conducted by YWCA Australia at [110]-[204] above, over 90% of the relevant financial expenditures of YWCA Australia were for the relief of poverty and/or the promotion of education. I find that YWCA Australia used and continues to use its financial resources predominantly for the relief of poverty and/or the promotion of education.

18. [222]

    I find that the appropriate scenario to use a tool in the way explained by the expert evidence is scenario B6. Adjusting Ms Davitt’s results to remove expenditure on those programs which was not for an exempt purpose involves a deduction from total expenditure of 4.21%. Without giving the process spurious precision it is nevertheless clear that over 95% of YWCA Australia’s total expenditure was “for” an exempt purpose.

19. [223]

    As I have earlier said, I do not accept the critical assumption which underpins the Commissioner’s thesis about the Song Hotels that expenditure on those Hotels is not a use of resources “for” the relief or poverty or the promotion of education. Accordingly, I would not adopt scenario B4 as reflecting in any way a correct analysis of the use of resources by YWCA Australia.

20. [224]

    Finally, even if I adopted scenario B4 as the correct scenario, the findings I have made about YWCA Australia’s programs have the effect that in scenario B4 3.03% of total expenditure was on programs which were not exempt. Accordingly, I find that even if expenditure on the Song Hotels is taken into account and treated as for a non-exempt purpose, 62.7% of YWCA Australia’s expenditure in the relevant year was for exempt purposes. I find that this is a predominant use of YWCA Australia’s resources for an exempt purpose and that even if the expenditure on the Song Hotels is taken into account as for a non-exempt purpose, YWCA Australia is entitled to succeed. I reject the Commissioner’s submission that only 13.93% of total expenditure was used for exempt programs. That submission was based upon an assertion that only those programs described at [115]-[135] above were for an exempt purpose.

21. [225]

    Even if contrary to my principal conclusions about the Song Hotels only 62.7% of YWCA Australia’s expenditure in the relevant year was for exempt purposes, I conclude that Ward CJ in Eq in Salvation Army was correct at [147] to reject the Commissioner’s argument in that case that a use or purpose will only be predominant if no other use or purpose is more than incidental and I do so here. The exempt purpose here was “the most dominant of the purposes of the institution or organisation”, even if expenditure on the Song Hotels is taken into account as non-exempt. The predominant use of YWCA Australia’s resources was for the relief of poverty and/or the promotion of education.

Conclusions

1. [226]

   YWCA Australia carries out the objects in its Constitution by using its financial resources on the numerous programs which I have concluded are (with immaterial exceptions) carried out for the relief of poverty and/or the promotion of education.

2. [227]

   A significant source of funding for those programs is the operation of the profit-for-purpose Song Hotels. I have rejected the Commissioner’s principal submission that the “use” of resources to which s 275(3)(a) refers must be a “direct” and “immediate” use. The Song Hotels are financial resources “used” by YWCA Australia for the relief of poverty and/or the promotion of education. YWCA Australia uses all profits of the Song Hotels for programs which provide for the relief of poverty and/or the promotion of education. The conduct of the Song Hotels is ancillary to the achievement of YWCA Australia’s exempt objects rather than being an end in themselves: see Word Investments at [24] per Gummow, Hayne, Heydon and Crennan JJ. YWCA Australia’s expenditure on the Song Hotels should properly be understood as a cost of funding YWCA Australia’s charitable activities for the relief of poverty and/or the promotion of education.

3. [228]

   Applying a broad evaluative approach to the statutory question I find that YWCA Australia used and uses its resources for the relief of poverty and/or the promotion of education. In conducting that broad evaluative approach, I accept the Commissioner’s submission that the assets of the subsidiary entities YWCA Housing and YWCA National Housing are not to be treated as “resources” used by YWCA Australia. This makes no difference to my conclusion.

4. [229]

   Adopting a purely evaluative approach, rather than a mathematical calculation, I conclude that the resources of YWCA Australia are predominantly used for the relief of poverty and/or the promotion of education. That is because, with immaterial exceptions, all of the assets of YWCA Australia are used to provide programs which are for the relief of poverty and/or the promotion of education.

5. [230]

   Adopting the method which the expert accountants agree can be applied to the same question, I conclude that YWCA Australia’s expenditures on programs directed at the exempt purposes, compared to expenditures on non-exempt purposes, demonstrate the same conclusion. That is, an appropriate methodology for seeking to identify the extent to which YWCA Australia’s resources are used for exempt purposes is to examine the extent to which its financial resources are expended (i.e. used) on programs which are directed at either or both of the exempt purposes, compared to expenditures which are not. This examination leads to the conclusion that the expenditure on exempt programs is the predominant use of YWCA Australia’s resources.

6. [231]

   YWCA Australia uses its resources predominantly for the relief of poverty and/or the promotion of education. I find that YWCA Australia is a body corporate for the time being approved by the Court standing in the shoes of the Commissioner for the purposes of s 275(3)(a) in the way explained by Ward CJ in Eq in Salvation Army at [153]-[155]. The assessments must be revoked.

7. [232]

   Given my conclusion about the exemption provided by s 275(3)(a) of the Duties Act it is strictly unnecessary to address the fall-back case. As I have explained, YWCA Australia makes only limited claims under s 275A. They are:

8. [233]

   It is common ground that YWCA Australia is a charitable or benevolent body for the purposes of s 275A. The real question is what portion of the land in question is used for an exempt purpose.

9. [234]

   Exempt purposes approved in accordance with the Guidelines are identified in [17] of DUT034 (“Exemption from Duty – Charitable and benevolent bodies”) as follows:

10. [235]

    The use of the relevant properties is explained in the affidavit of Shannon Wright affirmed on 24 October 2019 whose evidence, as I have said, I accept.

11. [236]

    The Nowra property is the location of the Southern NSW office and is allocated to the Southern NSW Regional Manager. The following programs are conducted or coordinated at the Nowra property: Links to Learning, Youth Protection Education Program, Women’s Domestic Violence Court Advocacy Services, Safer Pathways, Domestic Violence Intervention Service and Early Intervention and Placement Prevention Program. The Southern NSW office is located on McGrath Avenue in Nowra. The Domestic Violence Disclosure Scheme and Crisis Assistance Program and Youth Frontiers were carried on or coordinated at the Nowra property in May 2018 and have since ended. The Nowra property consists of offices, a meeting room for program staff, an adjoining office for visiting staff, a kitchen and separate staff kitchen and a client room.

12. [237]

    On the contingent hypothesis that I am wrong about s 275(3)(a), I find that the dutiable value of the Nowra Property should be reduced to nil under s 275A by reason that its use, both in terms of program activities and office administration work typically undertaken in a “headquarters”, is wholly for approved purposes.

13. [238]

    The Goonellabah property is allocated to the Northern NSW Regional Manager. The following programs are conducted or coordinated at the Goonellabah property: Links to Learning – rYse up, Goonellabah Transition Program, Youth Frontiers, Kids 4 LIFE, HIPPY and Communities for Children. The Goonellabah property consists of a basement and patio area used for the Kids For Life and HIPPY programs, an auditorium used as a training room to run training days, a foyer used for Links to Learning, Goonellabah Transition Program and Youth Frontiers, a kitchen used for the HIPPY program and an office used for the Communities for Children program.

14. [239]

    On the contingent hypothesis that I am wrong about s 275(3)(a), I find that the dutiable value of the Goonellabah property should be reduced to 5% by reason that its use, both in terms of program activities and office administration work typically undertaken in a “headquarters”, is 95% for approved purposes.

15. [240]

    The Campbelltown property is allocated to the Western NSW Regional Manager. The following programs are conduct or coordinated at the Campbelltown property: ROAR Homework, Links to Learning, Paths to Possible, Wingecarribee Family Abuse Prevention Service and Y Connect. The Campbelltown property consists of an office space for staff, a unit used for delivery of the programs, a reception area and a kitchen area. The first floor is allocated to be let commercially, with revenue derived from any leases used in accordance with YWCA Australia’s profit-for-purpose model.

16. [241]

    On the contingent hypothesis that I am wrong about s 275(3)(a), I find that 50% of the Campbelltown property is available for use for YWCA Australia’s activities, the balance being available for let at commercial terms. Accordingly, the dutiable value of the Campbelltown property should be reduced to 50% by reason that its use, both in terms of program activities and office administration work typically undertaken in a “headquarters”, is for approved purposes.

17. [242]

    The Broken Hill property is also allocated to the Western NSW Regional Manager and is used to carry on or coordinate the Girls Almighty Broken Hill Youth Program. The Broken Hill property consists of two offices, two storage rooms and a hall charged out at a small fee for two hours per week to Uniting Healthy Living Seniors to run information sessions and health talks.

18. [243]

    On the contingent hypothesis that I am wrong about s 275(3)(a), I find that the dutiable value of the Broken Hill property should be reduced to nil by reason that its use, both in terms of program activities and office administration work typically undertaken in a “headquarters”, is 100% for approved purposes.

19. [244]

    If it were necessary to do so I would make orders setting aside the assessments and remitting the matter to the Commissioner to make adjustments in accordance with these reasons.

Orders

1. [245]

   For the foregoing reasons, I make the following orders:

   1. (1)

      Revoke the following assessments dated 30 October 2018 of the defendant (Proceeding No 2019/223120):

   2. (2)

      Revoke the decision dated 14 June 2018 of the defendant (Proceeding No 2018/336819).

   3. (3)

      Set aside the determination dated 3 September 2018 of the defendant whereby the defendant disallowed the plaintiff’s 10 August 2018 objection.

   4. (4)

      Allow the plaintiff’s objections in full.

   5. (5)

      Order the defendant to pay the plaintiff’s costs in proceeding numbers 2019/223120 and 2018/336819.