[Mchelle Morris]

HI,
I have received a request from NSW Aboriginal Land Council for exemption as a PBI. They have 12 houses at Yamba that are occupied and the Local Land Council managing the properties are collecting rent. I advised the contact at NSW Aboriginal Land Council that the properties are rateable in accordance with the Aboriginal Land Rights Act but he has come back and claimed that now they want to claim exemption under Sec 556 as a PBI. The only supporting documentation to date they have supplied is a copy of the Australian Charities and Not-for-Profits Commission Charity register summary. Obviously this is not enough but until Local Government gives some support in the definition of a PBI we are seeking legal opinions all the time and possibly ending up in court again.
With this case we are a little sensitive based on the Nungera Co-Operative Society Ltd Vs Maclean Shire council decision in 1991.
My question today is with the provisions of the Aboriginal Lands Right Act 1983 and the Local Government Act, 1993 which one takes priority over the other as one says if the land is used for residential purposes rates are payable whereas in the other a PBI is exempt?

[Pete Timmins]

Hi fellow Revenue Professionals,

Like Mchelle received last year, I have recently received a request from the NSW Aboriginal Land Council for exemption from rates Under Sec 556(1) (h), as the local aboriginal land council is a public benevolent institution/public charity. The only supporting documentation to date they have supplied is a copy of the Australian Charities and Not-for-Profits Commission Charity Register Summary.

Sec 556 (1) (h) states that exemption applies to land that belongs to a public benevolent institution or public charity and is used or occupied by the institution or charity for the purposes of the institution or charity. My question is, if the dwellings are being used as residential accommodation does that meet the criteria of being occupied by the institution? I would also be interested to know how many other councils may be receiving these requests.

Thanks
Pete

[Andrew Butcher]

Hi Michelle and Peter

We had a similar issue here and refused the exemption on the basis that changes were made to the Aboriginal Land Rights Regulation 2014 that overrides precedent law (ie Nungera v Maclean Shire).

The LGAct is clear that only “land that is vested in the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council and is declared under Division 5 of Part 2 of the Aboriginal Land Rights Act 1983 to be exempt from payment of rates,”

The Aboriginal Land Rights Act refers to the regulations which is conditional and can be found on the following link.
http://www.legislation.nsw.gov.au/#/view/regulation/2014/553/part2/sec4

We have not had a problem since having the discussion with the local aboriginal land council.

Hope this is helpful.

Regards, Andrew

[Lisa Garner]

I have a question relating to this exact situation. I have received a request for exemption of 9 properties (8 residential which I’ll be refusing) under ownership of Twofold Aboriginal Corporation.

One property which I am unsure about is community based which also offers meals on wheels, activities, community housing etc but from this location they sell direct to the public oysters and fresh seafood among other small business operations.

The link below is to their website which outlines all of their services available https://www.twofoldjigamy.org.au/about

What are your thoughts? Does this fit the NR criteria?
Thank you.
Lisa

[Simone Fisher]

Hi Lisa,

We had a similar application a few years ago. In our case the property was owned by an Aboriginal Land Council declared under the Aboriginal Land Rights Act. They claimed PBI status & requested that their application be considered under sec 556(1)(h). We advised them that their application would only be considered under sec 555(1)(g).

The property in question was used for cultural activities as well as a small commercial café & was also available for public hire for weddings/functions & catering.

We declined the application due to the commercial activities & sited section 43 of the Aboriginal Land Rights Act & Clause 7(2)(b) of the Aboriginal Land Rights Regulation 2002 (now 4(2)(a) of the 2014 reg).

They weren’t happy with the decision & advised that they would be referring the application to their solicitors but we haven’t received anything further & they have been making payment of the business rates ever since.

Simone

[nucleo]

Hi
I have a Housing Aboriginal Corporation requesting exemption from rates. They have provided Council with a copy of their ACNC Charity Register Summary declaring them as a PBI. The rule book of the Corporation states:the objectives of the corporation aims to assist member by:
improving housing, living conditions and general standards of living by the provision of land, housing and other buildings and other services for their use and benefit.
Does having PBI status make them exempt considering their rules?
cheers
Adele

[Andrew Butcher]

Hi Adele

I think the big difference with your entity is whether it is an Aboriginal Land Council (ALC) that is vested ownership of the land. If it is not an ALC then the normal rules of assessing and granting an exemption would apply.

Its a bit difficult to advise on PBI status with the information supplied.

Hope this is helpful.

Andrew

[Mary Klower]

Hi
I have the Werin Aboriginal Corporation who have recently purchased a Medical Centre requesting nonrateability. They purchased the property in their name with a mortgage to Indigenous Business Australia. They have supplied ABN & Charity Register advising they are Australian Charities and Not for profit and Public Benevelent Institution. Their rule books states their objectives include Delivering free culturally apppropriate holistic health, training to Aboriginal people in Port Macquarie however it also states that they can establish and operate business ventures which will generate income to support the Aboriginal Community of Port Macquarie. Winding up section states that if they are dissolved all property and monies must be transferred to a similar charity.
I’m inclined to given them the nonrateability however just wanted to check with other Council’s if they have received any requests like this one and how they dealt with the application as I believe we should be consistent with our decisions.
Mary

[Lee Howard]

Hi Mary, We have an Aboriginal Medical Centre in Forster (Tobwabba Medical Centre) its been there for around 10 years now, on a part lot owned by the FORSTER LOCAL ABORIGINAL LAND COUNCIL, they have not applied for non rateability so far & its rated as business.

[Steve Ansoul]

Hi Mary,

We have also received an application from an aboriginal corporation (not a LALC) for exemption as a charity/PBI. This corp has been given exemptions for other properties based on LG general regulation clause 123(d) but 1 property not covered by ILUA and that’s the one they are asking for. I realise corps may have different “rule books” which I am yet to receive but I was wondering about what your case was and the outcome?

Cheers
Steve A.

[Jenita Ferguson]

Hi Steve
Under the Case Law section there is a case that Nambucca Shire Council lost in 1996:
Gumbangerrii Aboriginal Corporation v Nambucca Council
This relates to Aboriginal Corporation and whether the land was used or occupied for benevolent or charitable purposes
Thanks
Jenita

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