McCorquodale, John --- "Aboriginal Child Custody: Marriage of Gouge" [1985] AboriginalLawB 24; (1985) 1(13) Aboriginal Law Bulletin 9

• Aboriginal Hostels Limited V Darwin City Council
• Trusts – Constructive Trusts – Charities – Whether Provision Of Accommodation For Aborigines Is A Charitable Purpose – Company At Trustee Of Charitable Trust – Company Trustee As Instrument Of Minister Of The Crown – Power Of Minister To Dispose Of Assets Upon Dissolution Of Company Trustees – Application Of Cy Pres Doctrine Upon Dissolution.
• Local Government – Rateable Land – Whether Public Benevolent Institution Or Public Charity – Whether Constructed In Popular Or Legal Sense – Local Courts Act (Nt) S.53 – Local Government Act (Nt) Ss.169, 171(1), 172a, 175b(3) (C) – Statute 43 Elizabeth 1, C4 (U.k.).
• Per Nader J:

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Aboriginal Hostels Limited v Darwin City Council

Trusts – constructive trusts – charities – whether provision of accommodation for aborigines is a charitable purpose – company at trustee of charitable trust – company trustee as instrument of Minister of the Crown – power of Minister to dispose of assets upon dissolution of company trustees – application of cy pres doctrine upon dissolution.

Local government – rateable land – whether public benevolent institution or public charity – whether constructed in popular or legal sense – Local Courts Act (NT) s.53 – Local Government Act (NT) ss.169, 171(1), 172A, 175B(3) (c) – Statute 43 Elizabeth 1, c4 (U.K.).

Aboriginal Hostels Limited v Darwin City Council

Supreme Court of the Northern Territory of Australia; Per Nader J; at Darwin

30 July 1984, 28 February 1985

Casenote by John McCorquodale

Per Nader J:

This comes before the court as a question of law reserved by the Local Court at Darwin pursuant to section 53 or the Local Court Act (NT). The matter arises in this way. Aboriginal Hostels Ltd. (the company) appealed to the Local Court against entries in the rate book of the municipality of the City of Darwin respecting three hostels owned by the appellant.

The company contended that the subject land is not rateable land. Land is not rateable if it is used or occupied for the purposes of a public benevolent institution or public charity: section 175(3) (c) of the Lodal Government Act.

The company referred to objects (1) and (2) of clause 4 of its Memorandum of Association as the primary objects, the rest being ancillary to them:

(1) To provide, acquire, take over, establish, equip, maintain, conduct, control, manage or supervise hostels, hotels, housing and other forms of accommodation (herein after referred to as 'hostels') in Australia for the accommodation of Aboriginal people.

(2) To provide and carry on restaurants, cafeterias, canteens, recreational facilities, creche, welfare and health services, stores and other similar facilities for Aboriginal people who may be or are accommodated in any such hostels.

'Aboriginal' is defined for the purposes of the objects as a person of whole or part Aboriginal descent, who claims to be an Aboriginal and is accepted as such by the community with which he or she associates ....

The company submitted that it was a trustee in the relevant sense. Although there is no express trust it was submitted that the circumstances of the case point to a constructive trust ....

.. I am satisfied there is a constructive trust, the terms of which are sufficiently defined by the Memorandum of Association of the Company and the Agreement and 'Charter'.

A question was raised whether the expression ‘public charity’ in section 175B(3) (c) of the Local Government Act was to be construed in the popular sense or in its legal or technical sense. There was no contention on the matter but... I proceed on the basis that the expression 'public charity' is to be given its legal meaning. A convenlent starting point is the preamble of the statute, 43 Elizabeth 1. c4. The preamble contains a list of certain uses which are deemed to be charitable.

In Income Tax Special Purposes Commissioners v. Pemsel (1891) A.C. 531, at p. 583, charitable trusts were divided into four classes: .

1. trusts for the relief of poverty,
2 trusts for the advancement of education
4. trusts for other purposes beneficial to the community not falling under any of the preceding heads.

The company relies upon the fourth category as including its objects and purposes...

It was questioned whether the provision of accommodation for transient Aboriginal persons or single Aborlginal persons or families is a charitable purpose. The term ‘transient’ lacks precision, but it is apt to connote a person passing or travelling through a place and, I think, is wide enough to include a person who happens to be on a journey. It does not necessarily refer only to a person who has no permanent home, although it would include such a person. it is clear that an object of providing accommodation to all transients of whatever race would not be charitable: after all, the most expensive hotels do just that. What I regard as determinative in this case is that the transient person is Aboriginal. The fact that the purposes of accommodation are in respect of Aboriginal persons gives a special character to those purposes which renders an otherwise neutral purpose, charitable. Precisely the same observation applies to single persons and families. The matters contained in paragraph 6 of the 'charter' do not detract from the charitable nature of the expressed purposes. If paragraph 6 had not been included, it would not have affected the question. It has the effect onlyof requiring thecompanyto place its hostels in such a way as to ensure their most effective use.

The predominant purposes of the company's objects are in respect of Aborginals as defined: see above. The other purposes expressed in the objects that are not explicitly related to Aboriglnals are clearly ancillary to those that are. I would not have regarded authority as ncessary for the proposition that Australian Aborigines are notoriously in this community a class which, generally speaking, is in need of protection and assistance': Re Mathew [1950] VicLawRp 94; (1951) VLR 226 at p. 232 and Re Bryning (197, 6) YR 100. It is true that those cases might well be regarded as lacking in persuasive force in the present circumstances in Darwin by their considerable separation in time and place. As Lush J. said in Re Bryning, ‘That decision (Mathew) does not lead to the result that Aborigines are to be classified perpetually as in need of protection and assistance.’ (p.101). However, any ordinary informed person living in Darwin knows that Aboriginal persons in the Northern Territory are, in general; in considerable need of special consideration and assistance. There are several statutes both local and Commonwealth the purposes of which are to relieve the condition of Aboriginal persons and which give implicit recognition to its existence. I recognise that there is much debate as to the best ways to go about assisting Aboriginal.persons. Some people are quite strongly opposed to partiular methods adopted; such as the granting of land rights. But I think that no right thinking person could quarrel with the general proposition that Aboriginals are in need of special consideration and assistance. One situation in which it is apparent even to a casual visitor to the Northern Territory that a special need for assistance,exists as where Aboriginal persons are in an urban environment there the inability to manage is aggravated by the pervasiveness of a culture which has not come to terms with them and with which they have not come to terms, except insofaras there is by and large a tacit agreement to live separately. The provision of accommodation for the purposes referred to in the 'Charter must tend to relieve Aboriginal people of a significant disability. The notorious reality is that in general, they cannot, or feel they cannot utilise the hotels and other places of accommodation used by non-Aboriginal persons. Although it may not be correct to regard this activity as being for the relief of poverty or for one of the expressed traditional charitable purpose, I regard it as sufficiently analogous to those purposes to be held to be a charitable purpose. The fact that some payment must be made for the accommodation or that some of the purposes referred to in the 'Charter' are not per se charitable does not detract from the general proposition.

The class 'Aboriginal people' like many other classes (e.g: aged, impotent), whilst well recognised may be such that difficulty is experienced in determining whether a particular individual belongs to the class: this problem does not invalidate the recognition of the class. The fact that a number of individuals not actually in need of assistance may succeed in taking advantage of facilities intended for the great majority of the class does not detract from the charitable nature of purposes otherwise charitable.

It was submitted on behalf of the respondent that there is a significant number of persons of Aboriginal descent who are not tribalised, who live in towns, who have jobs and drive motorcars. Many are persons who may well resent being regarded as the recipients of charity if they were to use one of the subject hostels. However, the same could have been said of some persons coming within the traditional categories. The fact that some Aboriginal people in Northern Australia are on an equal footing with non-Aboriglnals so as not to benefit from or need the hostel accommodation provided by the company does not detract from the fact that the hostels are of 'potential benefit to' the great majority of Aboriginal people, and that the provision of the hostels is an attempt to meet an obvious need in Aboriginal society. Reference may be made to the Annual Reports referred to in paragraph 4 of the Statement of Agreed Facts.

The evidence shows that a very high proportion of the persons making use of the subject hostels have been unemployed persons. Counsel for the respondent submitted that I can draw no inference from the fact that those persons suffered from poverty. It was pointed out that many Aboriginals have elected to live in their traditional way, a way that usually precludes employment in the ordinary sense. As a result, although they may have what a non-Aboriginal Australian would regard as very few worldly possessions and be regarded by them as living in poverty, it would be wrong for the court to see such persons in that light. As counsel submitted, 'what is poverty to us is riches to them'.

This submission, as far as it goes, has force. To identify a state as one of poverty is to make a value judgement by reference to a more desirable state. Of those Aboriginals who do not desire the wealth required by most persons in our society; I doubt if it is proper to say that they are poor persons.

I would make two distinct observations abbutthat subnilsslon. First, there is no factual basis in these proceedings to enable me to make a finding as to the proportion of unemployed Aboriginals who are unemployed by choice, on the one hand, or unemployed by virtue of circumstances over which they have no control, on the other. Secondly, the submission loses sight of the fact that even Aboriglnals of the first category, when they come to Darwin into a non-traditional, non-tribal social environment need to be provided with adequate food and shelter. It is in such an environment that the plight of Aboriginal people is, as I said earlier, notorious. This case is about hostels in Darwin; a case about a hostel situated at a distance from an urban centre on traditional land where persons have freely chosen to live might involve quite different considerations.

I therefore conclude that the purposes of the Company are charitable, that the Company is a public charity and that the subject land is used and occupied forthe purpose of that public charity.

His Honour accordingly held that the subject land was used or occupied for the purposes of a public charity. Accordingly it was not rateable.

Counsel forAppeilant: G. Hiley.

Solictor for Appellant: Australian Government Solicitor.

Counsel for Respondent: D. Mildren QC.

Solicitor for Respondent: Loftus & Cameron