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Editors --- "Shire of Ashburton v Bindibindi Community - Case Summary" [2001] AUIndigLawRpr 14; (2001) 6(2) Australian Indigenous Law Reporter 18

Court and Tribunal Decisions - Australia

Shire of Ashburton v Bindibindi Community

Supreme Court of Western Australia (Wheeler J)

30 July 1999

[1999] WASC 108

Aborigines — local government — rating — liability of incorporated Aboriginal Association to pay rates — exemptions — ‘vesting’ of land — charitable purposes

Facts:

The Shire of Ashburton took action to recover rates and rubbish charges levied on land vested in the defendant. The land had previously been vested as a reserve for the purpose of ‘Use and Benefit of Aboriginal Inhabitants’ in the Minister for Community Welfare. The defendant denied liability to pay rates on the basis that it was not the ‘owner’ of the land for the purposes of s 1.4 of the Local Government Act 1995 (WA), or alternatively that the land was not rateable either because it was used for charitable purposes within the meaning of s 6.26(2)(g) of the Local Government Act or because it was the property of the Crown and used or held for a public purpose under s 6.2(2)(a)(i) of that Act.

Held, dismissing the application:

1. The defendant fell within the definition of ‘owner’ in s 1.4 of the Local Government Act because the term ‘vested in the Crown’ in s 1.4 encompassed all land of which the Crown holds radical title, and the ‘vesting’ of the land in the defendant pursuant to s 33 of the Land Act 1933 (WA) gave the defendant no more than the degree of care, management or control necessary to carry out the vested purpose. The defendant was therefore a ‘person lawfully entitled to occupy land which is vested in the Crown’ for the purposes of s 4.1(d) of the statutory definition. Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401 referred to. [8], [11]

2. In determining whether the land was ‘used exclusively for charitable purposes’ within the meaning of s 6.26(2)(g) of the Local Government Act the objects of the institution occupying the land would throw some light on whether the use was charitable in the legal sense, but would not be conclusive. Likewise, the land may be used ‘exclusively’ for charitable purposes if the main purpose of use of the land was charitable even if other purposes might exist which were merely incidental, so long as there was no separate and distinct purpose of a non-charitable character. Shire of Nunawading v Adult Deaf and Dumb Society of Victoria [1921] HCA 6; (1921) 29 CLR 98 followed; Salvation Army (Victoria) Property Trust v Ferntree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159 followed. [14]

3. Accepting that the advancement of Aboriginal people is a charitable purpose, the carrying on of businesses on the land did not prevent the land being used ‘exclusively’ for charitable purposes if those business were directed towards serving the dominant charitable purposes: [35]–[39]. To the extent that the objects of the defendant were relevant, the committee’s power to exclude persons from membership if otherwise eligible did not deprive the objects of the necessary public element as the power to exclude was to be read consistently with the objects of advancement of Aboriginal people generally: [32].

4. Because the plaintiff Council had purported to impose its rubbish collection charges as a service charge pursuant to s 6.38 of the Local Government Act, and there was no relevant regulation permitting the imposition of charges in that way, the Council lacked power to impose the charge for rubbish services. [54]