THE NATIONAL INSTITUTE OF DRAMATIC ART v CHIEF COMMISSIONER OF STATE REVENUE (NSW)

Judges:
White J

Court:
Supreme Court of New South Wales

MEDIA NEUTRAL CITATION: [2016] NSWSC 1471

Judgment date: 17 October 2016

White J

1. This is an application by The National Institute of Dramatic Art ("NIDA") for the review of a decision of the Chief Commissioner of State Revenue refusing an application by NIDA for a refund of payroll tax paid over the financial years ended 30 June 2010 to 30 June 2014. NIDA sought a refund of $2,540,040.

2. NIDA contended that the wages payable by it were exempt wages for the purposes of the Payroll Tax Act 2007 (NSW) pursuant to cl 12(1)(c) of Sch 2 to that Act. Clause 12(1)(c) provides:

" 12 Continuation of certain exemptions-religious institutions, public benevolent institutions, non-profit and charitable organisations

(1) Wages are exempt wages for the purposes of this Act if they are paid or payable by:

  •   …
  •   (c) by [sic] a non-profit organisation (other than a school or college, statutory body or an instrumentality of the State) having as one of its objects a charitable, benevolent, philanthropic or patriotic purpose, to a person in respect of time when the person is engaged in charitable, benevolent, philanthropic or patriotic work of the non-profit organisation, being a non-profit organisation in existence immediately before the repeal of the Pay-roll Tax Act 1971, …

…"

3. It is common ground that NIDA is a non-profit organisation and there was ultimately no dispute that NIDA has as one of its objects a charitable purpose. The Chief Commissioner rejected the application for a refund on the ground that NIDA is a school or college within the meaning of cl 12(1)(c) and that therefore the exemption does not apply.

4. NIDA does not dispute that it conducts a school or college. Up to 29 January 2012 it was registered as higher education provider with the NSW Department of Education and Training and from that date it was registered with the Australian Government's Tertiary Education Quality and Standards Agency as a higher education provider. It describes itself as Australia's National Education and Training Institution for the Dramatic Arts. According to its 2009 Annual Report, at the start of 2009 NIDA had 166 students enrolled in six higher education courses. It offered degrees of Bachelor of Dramatic Art in Acting, Design, Production, and Production Crafts, Properties and Costume. It offered a graduate Diploma of Dramatic Art (Directing) and an Advanced Diploma of Dramatic Art in Scenery Construction.

5. But this was only part of NIDA's activities. Counsel called it "the jewel in the crown" to distinguish it from the crown itself. In addition to offering graduate and undergraduate courses, NIDA carried out other activities through various divisions.

6. The NIDA Open Program offered a range of short-term and part-time courses in the Arts, including acting on stage and for the camera,

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singing, costume, production, writing and direction. The courses were available for children, adolescents and adults and were available at different levels. At least at foundation levels, courses were available to all. The courses might be for as short a time as one or two days. An example of such courses from 2011 included part-time courses for three hours for one or two nights a week for approximately three months or on weekends for intensive training through practical sessions in areas described as Acting Ensemble, Acting to Camera, the Designer, the Director presenting to Camera and Singers Studio. On average about 12,000 people attended such courses each year.

7. Another division was called Vocational Education and Training. NIDA offered programs that could result in vocational qualifications in areas such as musical theatre, specialised make-up, live production and technical services.

8. Another area was called NIDA Corporate. NIDA Corporate offered courses for business executives seeking to improve their communication skills.

9. Another division of NIDA was called Venue Hire. This involved the hiring out of theatres, foyers, rehearsal spaces and reception rooms, including by making performance space available to amateur community groups.

10. NIDA maintains a vast collection of costumes, props and staging that are hired to the general public. NIDA also stages its own productions.

11. In this and other ways explained in more detail later in these reasons, NIDA says that although as part of its activities it conducts a college or school, it should not itself be characterised as a college or school. Rather, its essential character is that of a promoter of the arts. It contends that this is a charitable purpose and that all of its activities are directed towards that purpose and all of its wages are thus exempt under cl 12(1)(c).

12. The Chief Commissioner contends that NIDA is a school or college within the meaning of cl 12(1)(c). He says that all or almost all of NIDA's activities are ancillary to its conduct of a drama school. He contends that the meaning of "school" is broad and that an institution where people, whether young, adolescent or adult, are instructed in some area of knowledge or activity is a school, so that not only NIDA's undergraduate and graduate programs involve the conduct of a school or college, but its broader activities such as, at least, its Vocational Education and Training Division and NIDA's Open Program, involve the conduct of a school or college. The Chief Commissioner contends that the fact that NIDA may be characterised as a promoter of the arts does not mean that it is not also a school or college within the meaning of cl 12(1)(c).

13. The Chief Commissioner also submits that if, contrary to his submission, NIDA cannot be described as a school or college within the meaning of cl 12(1)(c), that nonetheless its activities in conducting a school are covered by the exclusion to the exemption in that clause.

14. The Chief Commissioner also contends that if NIDA can otherwise bring itself within cl 12(1)(c) by avoiding the exclusion of being a school or college, it is not enough for wages to be exempt that the employees' work advances the charitable purpose of NIDA. Rather the work itself must be charitable work, that is, have an intrinsically charitable character. Thus, the Chief Commissioner submits that wages paid to employees engaged in hiring out costumes or theatres, or coaching business executives in communication skills, would not be paid for the employees' engaging in charitable work, even though it was work done for the purpose of raising funds that would be devoted to the overall charitable purpose of NIDA.

15. Counsel for NIDA recognised that one of the ordinary meanings of the word "school" that has been applied in this country in other contexts, is the wide meaning for which the Chief Commissioner contends. However, NIDA contends that read in the context of other provisions, the words "school or college" in cl 12(1)(c) refer to traditional institutions of educational instruction. Counsel submitted that merely because an organisation provides education or instruction does not mean that for the purposes of cl 12(1)(c) it is a school or college.

16.

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It is convenient to deal first with the issues of construction and the meaning to be given to the words "school or college" in cl 12(1)(c).

Legal Principles

17. Section 6 of the Payroll Tax Act imposes payroll tax on all taxable wages. Section 10(2) provides that exempt wages are not taxable wages. The employer by whom taxable wages are paid or payable is liable to pay payroll tax on the wages (s 7).

18. Part 4 of the Payroll Tax Act is headed "Exemptions". Sections 48 and 49 provide:

" Division 1 Non-profit organisations

48 Non-profit organisations

(1) Subject to subsection (2), wages are exempt wages if they are paid or payable by any of the following:

  •   (a) a religious institution,
  •   (b) a public benevolent institution (but not including an instrumentality of the State),
  •   (c) a non-profit organisation having as its sole or dominant purpose a charitable, benevolent, philanthropic or patriotic purpose (but not including a school, an educational institution, an educational company or an instrumentality of the State).

(2) The wages must be paid or payable:

  •   (a) for work of a kind ordinarily performed in connection with the religious, charitable, benevolent, philanthropic or patriotic purposes of the institution or body, and
  •   (b) to a person engaged exclusively in that kind of work.

(3) For the purposes of subsection (1) (c), an educational company is a company:

  •   (a) in which an educational institution has a controlling interest, and
  •   (b) that provides, promotes or supports the educational services of that institution.

(4) For the purposes of subsection (3), an educational institution has a controlling interest in an educational company if:

  •   (a) members of the board of management of the company who are entitled to exercise a majority in voting power at meetings of the board of management are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the educational institution, or
  •   (b) the educational institution may (whether directly or indirectly) exercise, control the exercise of, or substantially influence the exercise of, more than 50% of the voting power attached to voting shares, or any class of voting shares, issued by the company, or
  •   (c) the educational institution has power to appoint more than 50% of the members of the board of management of the company.

(5) In this section:

educational institution means an entity that provides education above secondary level.

Division 2 Education and training

49 Schools and educational services and training

Wages are exempt wages as provided for in Division 1 of Part 3 of Schedule 2."

19. Included in Div 1 of Pt 3 of Sch 2 is clause 4. It provides:

" 4 Schools and colleges

Wages are exempt wages if they are paid or payable by a school or college (other than a technical school or a technical college) that:

  •   (a) provides education at or below, but not above, the secondary level of education, and
  •   (b) is carried on by a body corporate, society or association otherwise than for the purpose of profit or gain to the individual members of the body corporate, society or association and is not carried on by or on behalf of the State of New South Wales."

20.

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Clause 12 is in Div 4 of Pt 3 of Sch 2. It is given effect by s 100 that provides that:

" 100 Provisions specific to this jurisdiction

Schedule 2, which contains provisions that are applicable only to this jurisdiction, has effect."

21. Both parties relied on cl 4 of Sch 2 to advance a contention in relation to the meaning of cl 12(1)(c). Clause 4 exempts from payroll tax wages paid or payable by a school or college (other than a technical school or a technical college) that provides education at or below, but not above, the secondary level of education and is carried on by a not-for-profit body corporate, society or association, provided it is not carried on by or on behalf of the State. The effect of cl 4 is that most private schools providing education up to the secondary level are not required to pay payroll tax.

22. The Chief Commissioner emphasised that cl 4 refers to a school or college that is carried on by a specified body (cl 4(b)). That is to say, the reference in cl 4 to a school or college is a reference to the conduct of a school or college by one of the specified bodies in cl 4(b). He submitted that "school or college" should be given a consistent construction in cl 4 and cl 12, so that in cl 12(1)(c) the exclusion of the exemption applies to the activities of the non-profit organisation in conducting a school or college, even if that activity were not the main activity or purpose of the organisation which would not itself be characterised as a school or college.

23. Consistently with this submission, at one point, the Chief Commissioner conceded that if this submission were accepted it would follow that insofar as wages were paid by NIDA for work done that was of an intrinsically charitable character, but was not properly characterised as wages paid for the conduct of a school or college or matters ancillary thereto, the wages would be exempt wages. Ultimately the Chief Commissioner's position was that he made no concessions. But, if the above argument were accepted, the corollary would follow.

24. The difficulty with this submission is that cl 12(1)(c), unlike cl 4, prescribes the exemption by reference to the identity or character of the non-profit organisation rather than by what activity the organisation carries on. Of course the activity the organisation carries on will be relevant to its proper characterisation, but the concepts are discrete. The contention advanced by the Chief Commissioner could only be adopted if cl 12(1)(c) could be read as if it provided, in substance, that wages were exempt if they were paid or payable by a non-profit organisation (other than in its conduct of a school or college, or a statutory body or an instrumentality of the State). Although such a construction would not be inconsistent with the apparent legislative purpose of the provisions, that is not sufficient to justify the adoption of the Chief Commissioner's submission (
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [39]). I cannot be satisfied that it was by inadvertence that the exclusion from the exemption in cl 12(1)(c) was made by reference to the character of the organisation rather than the activity carried on by it. The lack of symmetry between cl 4 and cl 12(1)(c) may have been intentional. The alternative construction could lead to additional complications in assessing what wages fell within and what fell outside the field of conducting a school or college. Neither the second nor third conditions stated by Lord Diplock in
Jones v Wrotham Park Settled Estates [1980] AC 74 at 105-106, as restated by Lord Nicholls in
Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109 at 115 is satisfied.

25. The words "school" and "college" each has more than one ordinary meaning. The Macquarie Dictionary defines "school" as including:

"1. A place or establishment where instruction is given, especially one for children.

…

3. A regular course of meetings of a teacher or teachers and students for instruction …

4. A session of such a course …

…

6. A department or faculty in a university or similar educational institution.

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7. A group of departments or faculties in a university or similar institution associated through a common disciplinary or interdisciplinary interest, or through a common purpose.

8. An instructive place, situation et cetera.

…"

26. The Oxford English Dictionary gives as the first relevant meaning of the word "school" that it is "An establishment or institution for the formal education of children or young people". The Australian Concise Oxford Dictionary also gives as the first meaning of "school" that it is "An institution for educating or giving instruction, especially for children, or US for any level of instruction including college or university".

27. The Macquarie Dictionary defines "college" as:

"1. A (usually) post-secondary, diploma-awarding, technical or professional school, as a teachers' college or technical college.

2. An institution for special or professional instruction, as in medicine, pharmacy, agriculture, music et cetera often part of a university.

3. An endowed, self-governing association of scholars incorporated within a university, as the church colleges within the University of Sydney.

4. A similar foundation outside a university.

5. Any of certain large private schools, or sometimes public schools.

…"

28. The Australian Concise Oxford Dictionary defines "college" as:

"1. An establishment for further or higher education, sometimes part of a university.

2. An establishment for specialised professional education (business college; college of music; naval college).

3. The buildings or premises of a college …"

29. In
Lawrence v South County Freeholds Ltd [1939] 1 Ch 656 a restrictive covenant prohibited the use of land for the carrying on of any trade or business other than that of a school or seminary, a surgeon or apothecary. The plaintiff sought an injunction to restrain the defendants from carrying on, or from suffering to be carried on, from the land the business of teachers of music and dancing. The defendants admitted that the premises were used for what was called a "school of music". Simonds J held that the primary and natural meaning of the word "school" was "a place where boys and girls receive instruction and discipline. That is the meaning which it bears in its most familiar compounds - schoolboy, schoolgirl, schoolmaster" (at 671). His Lordship said (at 672):

"… the addition to the word 'school' of further words of description 'of music', 'of dancing', or as the case may be, indicates that the ordinary meaning is in some way being qualified or extended."

30. A different approach was taken in
Cromer Golf Club Ltd v Downs [1972-73] ALR 1295; (1973) 47 ALJR 219. That case concerned the construction of s 40(1)(c) of the Public Works Act 1912 (NSW) that authorised the compulsory acquisition of land "for school sites". The High Court held that this provision authorised the acquisition of land for a National Fitness Camp, being an acquisition for the purposes of an existing national fitness camp at Narrabeen. Barwick CJ, with whom McTiernan and Stephen JJ agreed, said (at 1299):

"It seems to me that a 'school' is a place where people, whether young, adolescent or adult, assemble for the purpose of being instructed in some area of knowledge or of activity. Thus there are drama schools, ballet schools, technical schools, trade schools, agricultural schools and so on.

In my opinion, the activities of the National Fitness Camp at Narrabeen as described in the evidence predominantly involve the instruction of young and adolescent people in the care and improvement of the body, broadly an area of knowledge and expertise generally described as physical fitness. The form of the instruction no doubt varies and includes demonstrations and practice, but the character of the camp as so evidenced is, in my opinion, that of a place to which young and adolescent people resort in considerable numbers for the purpose of being instructed. That, it seems to me, makes

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the camp predominantly a school within the meaning of s 40(1)(c) of the Public Works Act. Therefore, in my opinion, the acquisition of an area of land for the extension of these instructional activities of the camp can properly be described as an acquisition of land for a school site within the meaning of paragraph (c) of s 40(1)."

31.
Commissioner of Taxation v Leeuwin Sail Training Foundation Limited (1996) 68 FCR 197 concerned an exemption from sales tax of "goods for use by a university, or school, that is conducted by a non-profit body". The question was whether the taxpayer conducted a school for the purposes of the exemption in conducting training programs, principally for young men and young women, on a square rigged ship. The ship was used for training programs, described as programs for personal development, corporate team building, disabled youth, school maritime studies, and eco adventure. The principal activity (that occupied about 70 per cent of the time taken by training activities involving the ship) was the personal development program that entailed a 10-day voyage in which participants received instruction in basic seamanship, catering, marine engineering, maritime history, meteorology and other nautical subjects. The emphasis was on participants' engendering teamwork, and "trust-initiating activities" to help develop personal relationships and responsibilities. The corporate team-building voyages lasted three days and their object was basically the same as that for the 10-day personal development voyages, except that due to the limited time the teams did not actually sail the vessel unaided. The disabled youth voyages were of five days' duration and were designed to offer participants experience in the challenges of sailing having regard to their particular disabilities and needs. The maritime studies voyages were of four days' duration and were designed to provide students with practical experience that complemented classroom activities, focusing on practical marine studies. The eco-adventure voyages were designed to provide participants with instruction in environmental awareness rather than personal development.

32. The principal object of the foundation that conducted these programs was to promote the education of young men and women by the provision of an adventure sail training scheme using a traditional sailing ship. The Full Court of the Federal Court held that the foundation conducted a school, applying what was said to be the ordinary meaning of that word as given by Barwick CJ in the Cromer Golf Club case consistently with a dictionary definition that included an establishment in which boys or girls or both receive instruction, or an institution in which instruction of any kind is given, whether to children or adults (at 202-203).

33. In Leeuwin the Commissioner of Taxation argued that the juxtaposition of the word "school" with "university" indicated that the word was used in the sense of an institution which promoted learning through a set curriculum taught by a professional body of teachers and subject to formal assessment where there was regular attendance of students over a substantial period of time (at 202). The Full Court of the Federal Court found that there was no such limitation. The Full Court found that the ordinary meaning of "school" was not so limited.

34. Carr J, who took a somewhat narrower view of the Court's function in deciding an appeal which was limited to a question of law than that of the majority, nonetheless observed that Barwick CJ in the Cromer Golf Club case had regard to the ordinary meaning of the term "school" that included an institution in which instruction of any kind is given, whether to children or adults, often with a defining word indicating a special subject that is taught, such as dancing, music or riding. His Honour considered that the reasoning of Barwick CJ in Cromer Golf Club was inconsistent with that of Simonds J in Lawrence v South County Freeholds Limited and preferred the view of Barwick CJ in Cromer Golf Club by which, if the matter were one of law, he was in any event bound (at 212). That is, there was nothing in the juxtaposition of the word "school" with "university" to indicate that "school" should be given a narrower meaning than what was said to be the ordinary meaning of the term.

35. The same approach to the meaning of the word "school" was taken by the Full Court of the Federal Court in
Commissioner of Taxation v Australian Airlines Ltd (1996) 71 FCR 446. It also concerned an exemption from sales tax for goods "… for use … by a university or school conducted by an organization not carried on for the profit of an individual".

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36. The taxpayer was a company, the shares in which were owned by the Commonwealth. It conducted the airlines business known as Trans-Australia Airlines. As part of its operations it conducted a flight training centre. The relevant exemption distinguished between the educational institution itself and the organisation that conducted the educational institution (at 463). Clause 4 of Sch 1 of the Payroll Tax Act makes a like distinction, but cl 12(1)(c) does not. Sundberg and Merkel JJ said (at 463):

"On the evidence before the primary judge, the centre was plainly a school in the sense described in the dictionary, in Cromer and in Leeuwin. It had defined syllabuses for each course of instruction provided. It had defined programs of instruction and qualified instructors. There was external certification by the Civil Aviation Authority of the syllabuses, the training exercises, the instructors and the equipment. The centre had a physically identifiable location, its own administration, and was established for the sole purpose of instruction. Qualifications obtained at the conclusion of training were portable - within Australia, a pilot could, without further qualification, work with any domestic airline operating aircraft of the type in respect of which the qualification was obtained. The flight training centre conducted by the respondent was therefore a school within item 63A."

37. Cromer Golf Club, Leeuwin and Australian Airlines provide a consistent body of authority attributing a wide meaning to the word "school" to which the Parliamentary draftsman might be expected to have had regard in the drafting of the relevant provisions of the Payroll Tax Act.

38. NIDA submitted that cl 4 of Sch 1 uses the words "school or college" in the traditional sense, rejected by the Full Court in Leeuwin, of an educational institution that promotes learning through a set curriculum taught by a professional body of teachers and subject to a formal assessment, and encompassing the notion of regular attendance over a substantial period of time. This is because cl 4 refers to a school or college that provides education at or below, but not above, the secondary level of education. That indicates that the school or college in question provides education that can be fitted within what is customarily understood as primary, secondary or tertiary levels of education. I think there is force in that submission insofar as it applies to cl 4. But it does not follow that the same interpretation can be given to cl 12(1)(c) that does not use the words "school or college" in the same context as those words are used in cl 4.

39. In my view the word "school" in cl 12(1)(c) is to be given the wide sense that the word has been given in the Australian cases referred to above as being a place or institution where people, whether young, adolescent or adult, receive instruction in some area of knowledge or of activity. "College" at least includes an institution that provides post-secondary higher education, such as a technical or professional school that awards a diploma or like certification, or provides specialised professional education, such as a business college, music college or naval college. I do not accept that in cl 12(1)(c) the words "school or college" refer only to an educational institution that promotes learning through a set curriculum taught by a professional body of teachers and subject to a formal assessment encompassing the notion of regular attendance over a substantial period of time. The National Fitness Camp in Cromer Golf Club and the training ship in Leeuwin would not be a school (or college) on that more limited definition. But both the High Court and the Full Federal Court, in finding that the relevant bodies conducted a school, said that this was in accordance with the ordinary meaning of that word. I do not think a more limited meaning should be given to the words "school or college" in cl 12(1)(c) merely because a more limited meaning might be adopted in cl 4 having regard to the context in which the words "school or college" are used in cl 4.

40. The legislative history of the relevant provisions does not indicate that they form a coherent whole so that the meaning of an expression in cl 12(1)(c) can be usefully

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obtained from the meaning of the same expression in cl 4. It is not only cl 4 that would have to be considered if recourse is had to context. Section 48 is also relevant. Again, there is no coherence in the exemption provided by s 48 and that provided by cl 12(1)(c) in Sch 2.

41. Section 48 exempts wages from payroll tax if the wages are paid or payable by, inter alia, a non-profit organisation that has a charitable, benevolent, philanthropic or patriotic purpose as its sole or dominant purpose, whereas cl 12(1)(c) applies to a non-profit organisation that has a charitable, benevolent, philanthropic or patriotic purpose as one of its objects. The wages that are exempt under s 48 are those payable to a person engaged exclusively in work of a kind ordinarily performed in connection with such a purpose of the non-profit organisation, whereas under cl 12(1)(c) wages are exempt when payable to a person in respect of the time when he or she is engaged in charitable, benevolent, philanthropic or patriotic work of the organisation. There is excluded from the kinds of non-profit organisations that might be entitled to an exemption under s 48 a school, an educational institution (meaning an entity that provides education above secondary level) and an educational company, being a company in which an educational institution has a controlling interest and that provides, promotes or supports the educational services of that institution. There is excluded from the exemption in cl 12(1)(c), a school or college.

42. There is no obvious reason for these overlapping but differently expressed exemptions. Given the width of the definition of "educational institution", it may be that in the context of s 48(1)(c) the word "school" has a more limited meaning than it does in cl 12(1)(c), but it is not necessary to decide that question. Again, the different context in which the word is used in s 48 means that whatever meaning might be given to the word "school" in the exclusion from the exemption in s 48(1)(c) does not translate to cl 12(1)(c).

43. Ms Kaur-Bains who appeared for the Chief Commissioner helpfully traced the legislative history of the different provisions.

44. Between 1949 and 1971 payroll tax was imposed by the Commonwealth. Section 15 of the Payroll Tax Act 1941 (Cth) relevantly provided that payroll tax was not imposed on wages paid by a religious or public benevolent institution (Payroll Tax Act 1941, s 15(b)). Section 15 was amended in 1966 to include s 15(bb) which included an exemption for:

"a school or college (other than a technical school or a technical college) which -

  • (i) (i) is carried on by a body corporate, society or association otherwise than for the purpose of profit or gain to the individual members of the body corporate, society or association and is not carried on by or on behalf of a State; and
  • (ii) (ii) provides education at or below, but not above, the secondary level of education."

45. In the second reading speech by the Minister introducing the bill that became the Pay-roll Tax Assessment Act 1966 (Cth) the Minister stated that:

"This Bill will give effect to two pay-roll tax measures proposed in the Budget Speech. The first of these will give a pay-roll tax exemption to certain non-Government schools providing education at the secondary level or lower. This will place these schools on the same basis for pay-roll tax purposes as church schools providing similar education. …" (Hansard 15 September 1966)

46. When responsibility for the imposition and collection of payroll tax was passed to the States in 1971 the provision that was in s 15(bb) of the Pay-roll Tax Assessment Act 1966 (Cth) was substantially replicated in s 10(d) of the Pay-roll Tax Act 1971 (NSW). That provision remained in the Pay-roll Tax Act 1971 until its repeal in 2007. In 2007 the section which had been s 10(1)(d) of the Pay-roll Tax Act 1971 became cl 4 of Sch 1 to the 2007 Act, with the only material change being a change to the order of sub-paras (i) and (ii).

47. The progenitor of cl 12(1)(c) was ss 10(1)(j) and (2) of the Pay-roll Tax Act 1971. Prior to the repeal of that Act in 2007, s 10(1)(j) and (2) relevantly provided:

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" 10 Exemptions from pay-roll tax

(1) Subject to subsections (1A) and (2), the wages liable to pay-roll tax under this Act do not include wages paid or payable:

  •   …
  •   (j) by a non-profit organisation (other than a school or college, statutory body or an instrumentality of the State) having as one of its objects a charitable, benevolent, philanthropic or patriotic purpose,
  • …

(2) Paragraphs (j) … of subsection (1) only operate so as to exclude from wages liable to pay-roll tax under this Act wages which are paid or payable to employees in respect of time when they are engaged in charitable, benevolent, philanthropic or patriotic work of the non-profit organisation or the charitable work of the organisation, society or institution."

48. These provisions became cl 12(1)(c) of Sch 2 to the 2007 Act.

49. Section 10(1)(j) of the 1971 Act was introduced by the Pay-roll Tax (Further Amendment) Act 1977 (NSW). In introducing the Bill for that Act the Treasurer stated in his Second Reading Speech that:

"Many charitable bodies have made representations to the Government seeking relief from the tax. These representations have been closely examined and in the light of the commendable services provided to the community the Government concluded that the organizations were deserving of all the support we could give them. …

…

Honourable member [sic] may recall recent press publicity on income tax avoidance schemes involving charities. The Government wishes to avoid a similar problem arising in payroll tax and the bill incorporates a provision, item (4)(2), to prevent advantage being taken of the new concessions. The provision states that paragraph (j), (k) and (l) of subsection (1) operate only so as to exclude from wages liable to pay-roll tax under this Act wages which are paid or payable to employees in respect of time when they are engaged in charitable work within the charity, society, institution or statutory body. Finally, the concession will not apply to tertiary institutions. The financing arrangements for these bodies are subject to special Commonwealth-State agreements." (Hansard 29 November 1977, p 10517.)

50. There is no equivalent to s 48 in the Pay-roll Tax Act 1971 (NSW). A purpose of the 2007 amendments was to harmonise payroll tax law with Victoria. Section 48 is in substantially the same terms as in the Payroll Tax Act 2007 (Vic). The section appears to have its origins in s 10(1)(b), (ba), (bb), (2), and (3) of the Pay-roll Tax Act 1971 (Vic).

51. Having regard to the discrete sources from which the provisions were drawn, it is not surprising that they lack a coherent structure. The context in which the provisions appear does not provide material assistance in construing the text of cl 12(1)(c), although it is clear that it was not the purpose of cl 12(1)(c) to provide an exemption for tertiary institutions. This tends to support giving the words "school or college" in cl 12(1)(c) a wide meaning in accordance with the line of authority stemming from Cromer Golf Club.

52. The question then is whether NIDA is a school or college in that wide sense. The characterisation of NIDA as an institution must have regard to its objects as provided for in its constitution and its activities (R v Trade Practices Tribunal;
Ex Parte St George County Council (1974) 130 CLR 533; [1974] HCA 7 at 562;
Re Ku Ring Gai Co-operative Building Society (No. 12) Ltd (1978) 22 ALR 621 at 624, 634, 641-642;
State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282; [1982] HCA 77 at 305;
United Firefighters Union of Australia v Country Fire Authority [2015] FCAFC 1; (2015) 315 ALR 460 at [132]-[138]). This is consistent with the High Court's decision in
Incorporated Council of Law Reporting (Qld) v Federal Commissioner of Taxation (1971) 125 CLR 659; [1971] HCA 44 where Barwick CJ said (at 666) that the Council of Law Reporting would be a "charitable institution" within the meaning of s 23(e) of the Income Tax and Social Services Contribution Assessment Act 1936-1962 (Cth) if its purposes were charitable "for the nature of the institution inheres in the purposes it is created to and does pursue

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".

NIDA's Constitution

53. From 27 May 2008 clause 10 of NIDA's constitution has provided:

" 10. Principal Purpose of the Company

The principal purpose of the Company is to promote and encourage expertise in the practice, knowledge, appreciation, understanding and enjoyment of drama, music, opera, ballet and any other art of the theatre in all their expressions including film, television, multimedia and other forms of technology and media whether now known or developed in the future, either directly or indirectly, by:

  • (a) teaching training and instructing persons and promoting education and research;
  • (b) establishing and conducting schools lectures, courses, seminars, workshops and other forms of education in any format including face to face, flexible and online formats;
  • (c) conferring degrees, diplomas, certificates or other awards;
  • (d) awarding scholarships, fellowships, bursaries and other financial assistance; and
  • (e) presenting plays, opera, ballet and any other form of theatre art,

anywhere in the world."

54. Clause 11 states that "in furtherance of the principal purpose of the company described in clause 10, the company has the following purposes: …". There follow 19 additional "purposes", many of which would be better described as powers (such as the power to purchase, lease, hire, accept or otherwise acquire property or to construct buildings or to sell, manage, lease, license, grant concessions over, mortgage, dispose of or otherwise deal with property).

55. It can be seen from clause 10 that the principal purpose of NIDA can be expressed generally as the promotion and encouragement of expertise in the practice, knowledge, appreciation, understanding and enjoyment of the arts. But the focus of the ways in which that purpose will be achieved is on teaching and educating people in the arts, including by establishing schools, lectures, courses, seminars et cetera and conferring degrees, diplomas, certificates or awards, as well as awarding scholarships and financial assistance and presenting plays, opera, ballet and any other form of theatre art. The overall effect of clause 10 is that NIDA's principal purpose is to promote the arts through teaching and education, including through the provision of lectures and workshops and through the conducting of schools that confer degrees or other awards.

NIDA's Annual Reports

56. NIDA's annual reports describe its activities. Its reports are for a calendar year. In its 2009 annual report NIDA provided a "Vision statement" and a "Mission statement". Under the heading "Vision" it said:

"NIDA is Australia's national education and training institution for the dramatic arts, discovering and nurturing creative professionals and dynamic arts practice. Our graduates will become the future leaders, innovators and agents of change for the arts and entertainment industry, enabling Australia to develop its cultural identity both at home and on the international stage."

57. Under the heading "Mission" it stated:

"Creative transformation is at the heart of NIDA's mission. NIDA will continue to provide immersive conservatoire-based education and training, and a collaborative environment to support exceptional students on their personal journeys to become innovative creative artists and practitioners."

58. NIDA's chairman Mr Long stated:

"I am pleased to report a very successful year for NIDA's 50th anniversary, with NIDA continuing to fulfil its role of transforming its students into highly trained, talented and creative professionals who can strongly contribute to the arts and entertainment industry in Australia and internationally. Our graduates

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have continued to demonstrate great success in their chosen fields of expertise in the theatre, film, broadcasting and in the many new performance platforms that are emerging. Through the NIDA Open Program, Corporate Performance and the Parade Theatres, we have provided a wide range of opportunities for people across Australia to access the skills and talents associated with NIDA and to engage in personal and professional development."

59. NIDA's chief executive officer, Ms Lynne Williams reported:

"The National Institute of Dramatic Art (NIDA) has been delivering advanced conservatoire-based education and training in theatre and performance-making for 50 years. In 2009, we were able to celebrate the magnificent achievements of the past and also signpost new initiatives for the future with an extremely successful anniversary year program.

We began the celebrations with a spectacular Anniversary Reunion Party, welcoming back alumni from across the past 50 years and introducing our current students and staff to this vast support network. Many alumni registered their interest in playing a greater role in NIDA's future programs and we are continuing to explore ideas including an alumni mentoring scheme. We are also committed to developing a range of courses which will help graduates and the wider industry to refresh and reinvigorate creative practice and offer continuing professional development opportunities throughout all stages of their careers. To help our most recent graduates, we launched Springboard as part of our 'pathways into industry' scheme. The first graduates to benefit from the scheme were those of the Theatre Forward collective who presented a program in the NIDA Parade Studio with financial, venue and marketing support. We hope to expand this scheme over the coming years.

2009 also saw NIDA launch its annual Artist-in-Residence initiative to broaden the experience of students and challenge existing practice. …

Another anniversary initiative was the NIDA Commissioning Program, allowing us to contribute to the commissioning. …

The Design Expo was relaunched with the new name EXPONIDA in 2009 to reflect the contributions of students from across many courses including properties, costume, scenery construction, production and design. …

…

Partnerships within the arts and entertainment industry and with other training institutions in 2009 provided us with some very exciting initiatives and the opportunity for students to gain deeper knowledge and broader skills. As a birthday treat generously financed by the NIDA Foundation Trust, NIDA worked in partnership with the Australian Film, Television and Radio School to produce, Before the Rain, a film created around four connected stories. …

2009 also saw NIDA funded by the Federal Government to carry out a feasibility study into the proposed Centre for Contemporary Performance Practice. …

…

Another important message for the anniversary year was that we wanted to share the NIDA experience among as many people as possible. Our Open Program and Corporate Performance teams worked extremely hard and continued to attract young people and adults to attend a range of courses despite the tough financial climate. I believe this is a testament to the quality of the experience these programs offer and the desire on the part of many people to share in the NIDA magic. Similarly, our Parade Theatres program saw many new faces in the NIDA foyer and we are continuing to look at ways to increase our reach and encourage non-theatre goers to come and try a different experience. …

NIDA turning 50 in 2009 was a timely reminder that our reputation for excellence relies on the success of our graduates, the consistent quality of our programs and our recognition of the rapidly evolving needs of the global arts and entertainment industry.

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NIDA is committed to offering higher education courses which will nurture future leaders and agents of change and ensure the creativity and innovation that are central to the future of the industry. In doing so, NIDA aims to make a significant contribution to the development and the sustainability of a unique Australian cultural identity. Through the proposed Centre for Contemporary Performance Practice we want to ensure that Australians are at the forefront of research into a broad range of new and emerging performance contexts.

…"

60. The focus of these descriptions is on NIDA's contributing to the arts primarily through its education and training programs.

61. The 2010 annual report contained the same Vision and Mission statements as did the 2009 report. The chairman's letter opened with the following statements:

"NIDA has had a very successful year both educationally and artistically. The Board was also pleased NIDA received very positive endorsements from Commonwealth and State agencies that are fundamental to NIDA's functioning as a higher education institution.

In 2010 NIDA was registered for a further five years as a higher education institution by the NSW Department of Education and Training. In July the Australian Universities Quality Agency (AUQA) published the report of the audit panel that undertook AUQA's first detailed quality audit of NIDA's activities. The report noted that NIDA is moving through a process of change and renewal and acknowledged the 'enormous amount of work that has been undertaken within the Institute by staff at all levels in effecting change'. New teaching staff members who joined NIDA during the year are also deeply involved in this process, particularly in the areas of film and television, playwriting, voice, music and movement."

62. The letter from Ms Williams stated that in 2010 NIDA had continued to:

"… provide opportunities for our students to explore new methods of generating work, new kinds of collaborative partnerships and new ways to engage with audiences.

Our annual Artist-in-Residence Program is particularly valuable. Supported by the Seaborn, Broughton and Walford Foundation, the program offers students the opportunity to explore ideas with cutting-edge artistic practitioners who are industry leaders in their fields. In 2010, the second year of the residency program, our students worked with renowned physical theatre company Legs on the Wall. Students across all courses were able to experiment with contemporary physical theatre and to understand the particular needs and opportunities of this art form. In May, the design, directing and production students collaborated with Legs on the Wall to bring together the sights, sounds and spirit of a vaudeville carnival in the NIDA foyer with Tiny Top. In August, weeks of rehearsal at Legs on the Wall's home, The Red Box in Lilyfield, resulted in an off-site production of The Hour We Knew Nothing of Each Other, by Peter Handke. Performed on the forecourt of Customs House at Sydney's Circular Quay, this huge undertaking gave students invaluable insights into presenting a physical work within a busy outdoor environment.

There were also significant additions to our courses in 2010. A new music theatre stream was developed within the Bachelor of Dramatic Art (Acting) …

In 2010 we welcomed Jane Bodie, our new Head of Playwriting, and the first cohort of postgraduate playwriting students to work alongside our postgraduate directing students. The presence of the playwrights had a profound effect on students across all courses at NIDA, adding to their appreciation of the process of development and realisation of new work. …

The NIDA production program was again a highlight of the year …

New partnerships within the arts and entertainment industry provided a variety of opportunities for our graduates within our

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Pathways into Industry program alongside the expansion of the Springboard program in support of emerging artists. …

In July, the Australian Universities Quality Agency (AUQA) published its first quality audit of NIDA as a higher education provider. … The positive and encouraging audit report commended the changes taking place at NIDA and our commitment to continuous improvement.

Of course, all of these new program initiatives and our successful audit would not have been possible without the ideas and enthusiasm of members of the NIDA teaching and support staff and my thanks go to them for their commitment to the changes we have implemented. …

My thanks also to our hard-working commercial and outreach teams who have returned outstanding financial results despite a very difficult business climate. This is a testament to the quality of the experience that we offer everyone who comes to NIDA, whether as part of the Open, Corporate Training or Parade Theatres programs or as prospective students attending Open Day or as our friends, donors and sponsors enjoying students' presentations.

…"

63. The emphasis in Ms Williams' statement in the 2010 annual report was on the education NIDA offered its students. Thanks were provided to the Commercial and Outreach teams offered as part of the Open program, the Corporate Training program or Parade Theatres programs in contributing to NIDA's success. The inference I draw from the letter is that those programs were regarded as being ancillary to NIDA's core function of providing education to its students.

64. The 2011 annual report omitted the previous Vision and Mission statements. Possibly they had fallen out of fashion. The first page of the report described NIDA in the following terms:

"The National Institute of Dramatic Art (NIDA) is a not-for-profit company accorded its national status as an education and training institution by the Australian Government.

We continue our historical association with the University of New South Wales and maintain strong links with national and international arts training organisations, particularly through membership of the Australian Roundtable for Arts Training Excellence and through industry partners which include theatre, dance and opera companies, cultural festivals and film and television producers.

NIDA delivers education and training that is characterised by quality, diversity, innovation and equity of access. The Institute's focus on practice-based teaching and learning is designed to provide the strongest foundations for graduate employment across a broad range of employment opportunities and contexts.

Entry into NIDA's higher education courses is highly competitive, with more than 2,000 applicants from across the country competing for an annual offering of approximately 60 places across all undergraduate and postgraduate disciplines. In 2011 the student body for these courses totalled 169.

Through NIDA Open, the Institute offers its educational expertise more widely. NIDA Corporate Performance offers presentation and public speaking skills to professionals from across many business sectors, while more general NIDA Open courses are provided for participants in almost every age group, in capital cities and regional centres and modes that meet a diversity of economic and cultural needs. Around 15,000 people each year participate in these public courses.

The cultural industry continues to be supported by the activities of NIDA Parade Theatres, which houses programs of creative support and serves as a venue partner to emerging and established producers.

NIDA is funded by the Australian Government through the Department of Regional Australia, Local Government, Arts

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and Sport, with the specific purpose of delivering performing arts education and training at an elite level.

NIDA has a highly active program of community engagement which assists in fundraising through private philanthropy and corporate sponsorship."

65. Again, the emphasis is on NIDA's education in its undergraduate and graduate programs and the education offered more widely through NIDA Open and NIDA Corporate Performance. The same emphasis appears in the reports from the chairman and the chief executive officer. Ms Williams described NIDA as Australia's leading education and training institute for the dramatic arts. The 2011 annual report then provided sections describing first the undergraduate program, and secondly the post-graduate program. It stated the number of students enrolled and the number of staff, visiting staff and the productions undertaken. NIDA's productions are an essential part of its educational philosophy of learning by doing.

66. The next section of the report was headed "NIDA Open". It was reported that in 2011 the NIDA Open program and NIDA Corporate Performance joined forces to become NIDA Open offering "access to NIDA philosophies and expertise through short and part-time courses for young people and adults, and through communication and presentation skills training for business professionals." It was stated that NIDA Open's offerings included acting, design, production, costumes, properties, directing and playwriting, and in addition courses in TV presenting, film-making, writing for film and television, higher school certificate specialist topics, early childhood learning, teacher training, and communication and presentation skills. These courses were offered through a variety of formats. It was said that for young people these included seasonal holiday courses, regular term classes and specialist schools sessions and that for adults there were year-round evening and weekend short courses, two and four term part-time courses and customised training.

67. To deliver the various programs NIDA Open employed 395 casual tutors throughout 2011 who were recognised as experts in education and professional practice. They were drawn both from regular teaching staff and from the arts and entertainment industries. It was reported that throughout 2011 NIDA Open provided NIDA's higher education students and recent graduates with training and casual employment opportunities in the NIDA Open courses.

68. The next section of the report was headed "Educational Resources and Technology" and described NIDA's investment in technology and its capital works projects and their funding.

69. The next section was headed "Development". Under this section NIDA thanked its principal donors and sponsors.

70. Again, the main focus of the report was on NIDA's undergraduate and graduate programs. Its secondary focus was on the programs offered through NIDA Open.

71. In its 2012 annual report greater emphasis was given to the activities of NIDA Open. In her report Ms Williams referred to NIDA's contribution to debate concerning a new national cultural policy and its implementation of a "Continuum of Opportunity" program. She said that this program aimed to bring arts and cultural education and training to a wider constituency and sought to encourage families, schools, businesses and communities to value creativity as an important part of their lives and to equip elite students and mid-career professional practitioners with skills and expertise to lead the cultural life of the nation. She reported that offerings of NIDA Open had expanded and more than 17,000 students had responded to a range of courses and activities. NIDA's undergraduate and graduate program continued to hold prominent places in the report.

72. The section on NIDA Open reported that the programming reflected NIDA's higher education offerings with courses in performance, design, production, costume, properties, directing and writing, as well as courses in television presenting, film-making, higher school certificate specialist topics, early childhood learning, teacher training and communication and presentation skills development. Over 17,000 students and "clients" participated. Four hundred

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casual teachers were employed in the NIDA Open program who were mostly NIDA graduates. It was reported that for many participants NIDA Open's training was a pathway into NIDA's higher education program. Thirty-eight per cent of the students undertaking full-time undergraduate and graduate study had previously completed short course programs through NIDA Open.

73. There is not a material change of emphasis in the 2013 and 2014 reports. Each of the reports from 2011 contains a brief description of NIDA in substantially the same terms as that contained in the 2011 report quoted at [ 64 ] above.

Ms Williams' Evidence

74. Ms Williams deposed that NIDA was made up of a number of divisions that she listed as follows:

75. Ms Williams deposed that on average there were only 75 students per year enrolled in the graduate and undergraduate programs from 2009 to 2014 as opposed to an average of 12,000 NIDA Open program students per year.

76. Ms Williams joined NIDA as its chief executive officer in May 2008. She deposed that prior to joining NIDA she had "… maintained a broad portfolio career as a creative artist, artistic director and cultural entrepreneur". Apart from five years as a lecturer in Education and Performing Arts at the University of Wollongong between 1977 and 1982 her background was not in teaching. NIDA submitted that its appointment of a chief executive officer with such a background was consistent with its essentially not being a school or college, but rather having a broader role in the promotion of the arts.

77. Ms Williams gave evidence of NIDA's activities that might not be characterised as the activities of a school or college. She deposed that part of her role was "… building and

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strengthening relationships and partnerships with companies, institutions and festivals which will benefit NIDA as a whole and increase the profile of the Dramatic Arts within Australia's cultural life." She gave examples of such partnerships and relationships with other arts organisations. She said that an important aspect of her role was promoting NIDA and Australian Performing Arts to the world. She gave examples of that. Ms Williams deposed that she had opened up NIDA to the community at large by increasing the range of NIDA Open and Corporate programs to "… give children and adults access and opportunities to realise their creative potential". She said that:

"This vision for many points of access to NIDA's activities has informed NIDA's overarching program entitled 'the continuum of opportunity'. These opportunities for all to interact with NIDA at multiple points throughout their lives ranges from two year old children attending a story-time class with their parents, to primary school students attending their first live Dramatic Arts performance, through to holiday courses, studios and corporate professionals attending a NIDA Corporate class. Of course, the elite training programs also sit within this 'continuum of opportunity' but make up a … part of the whole."

78. Ms Williams deposed that NIDA had been realising "this vision" through what she called the "Independent Program" that had been running since 2012 through which NIDA provides free facilities and rehearsal spaces to small arts organisations and co-operatives made up of emerging artists. She deposed that NIDA provides assistance to artists with marketing and developing their work, including providing them with access to industry experts to provide guidance. She deposed that NIDA functions as a centre for community arts activities offering its performance spaces and venues for hire to the broader community or free for specific "industry partners". She deposed that NIDA had a vast collection of costumes, properties and staging available for the general public to hire at reduced rates and that this was offered not to generate revenue, but to increase opportunities for the broader community to access the arts through a relationship with NIDA. She said that NIDA viewed its theatres and spaces as a key access point to NIDA for the community and when its theatres and spaces are not being used for its own purposes they are available for hire, mostly to community groups.

79. Whilst Ms Williams did refer to NIDA's undergraduate and graduate programs as contributing to its community initiatives and the implementation of "'continuum of opportunity' vision", her affidavit did not give NIDA's undergraduate and graduate programs the prominence they were given in NIDA's annual reports.

Other Evidence of NIDA's Activities

80. NIDA provided an affidavit from the head of its Open and Corporate Division, Ms Caroline Spence, and from the "Producer" at NIDA, a Ms Johanna Mulholland, who was the producer at NIDA Parade Theatres responsible for managing its facilities and venues in Kensington (where the NIDA Parade Theatre is located) and was responsible for overseeing NIDA's productions and events as well as NIDA's "Independent Program".

81. There was no similar affidavit from the head of NIDA's undergraduate and graduate programs describing those programs in the same detail. Nor was evidence given about NIDA's Vocational Education and Training division in anything like the detail given in relation to NIDA's other programs that involve a broader engagement with the community.

82. It is clear that in its undergraduate and graduate programs NIDA conducts a school or college. Having regard to the width of the definition of school or college, and having regard to the paucity of the material adduced in respect of its VET division, I conclude that NIDA also conducts a school or college in providing programs to students in order for them to gain qualifications in the performing arts in various specific skills through that division.

83. One relevant criterion in assessing the relative significance of NIDA's undergraduate and graduate programs and its Vocational Education and Training program on the one hand, and its other operations on the other hand, is the extent to which different divisions contributed to revenue and the costs

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incurred in respect of those divisions, including the number of staff engaged in them. The 2011 annual report is typical of the entire period. In the year ended 31 December 2011 NIDA derived revenue of $18,124,987 reported as follows:


Revenue 2011
$
Operating grant from the Australian Government 6,826,657
Capital works grant from the Australian Government 2,366,262
Box Office Revenue 71,826
Donations - NIDA Fund 77,150
• NIDA Foundation Trust 620,000
• Other 7,673
Rental of venue and associated revenue 1,090,015
Bursaries and student support - NIDA Foundation Trust 158,655
Sponsorship SBW Foundation 100,000
Open and Corporate Programs 5,009,660
Student Fees - Full-time program 1,383,845
Sundry revenue 413,244
Total revenue 18,124,987

84. Of the $5,009,660 of revenue contributed by the Open and Corporate programs, $3,423,044 was contributed by the NIDA Open division and $1,586,616 by the NIDA Corporate division.

85. NIDA as a whole obtained a surplus in that year of $389,147. Its principal expense was wages, salary and oncosts that totalled $10,038,409. It reported that the Open and Corporate Programs provided a surplus of $1,944,082 and without those programs NIDA would have incurred a deficit of $1,554,935.

86. The most significant contribution to revenue was the operating grant from the Australian Government of $6,826,657 and the capital works grant from the Australian Government of $2,366,262.

87. Funding is provided to NIDA by the Australian Government pursuant to funding agreements. The funding agreement for 2010-2011 required NIDA to carry out "the Activity" to achieve the "Objectives" within the "Activity Period", in accordance with the agreement and diligently, effectively and to a high standard. The "Activity" NIDA was required to carry out was defined as meaning "the activity described in item A [Program and Activity], which aims to fulfil one or more of the Objectives of the Program, and includes the provision of Activity Material." Those were further described as follows:

" A.1. Program

A.1.1. The program is the Cultural Development Program, which promotes cultural excellence, creativity and the enrichment of cultural life in Australia.

A.2. Activity

A.2.1. The Activity Period commences on the Date of this Agreement and ends on 30 June 2011.

A.2.2. The Objectives of the Activity are to select and train talented people to prepare them for a range of professional careers in the entertainment industry.

A.2.3. In performing the Activity, the Recipient is required to:

Deliver an annual accredited program of full-time courses in acting, design, directing, production and production crafts and playwriting, and when market demand is judged by the Recipient to be sufficient, deliver accredited full-time courses in playwriting, movement and voice studies;

Strengthen its full-time training program by:

attracting and retaining specialist teachers;

providing professional development opportunities to specialist teachers; and

providing students access to, and training on, relevant current technologies and equipment as are used in the entertainment and/or performing arts industries.

Secure the best participants for its programs.

Provide, to the best practice standard, physical and psychological support for students in order to develop students'

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ability to prevent and manage injuries and to maintain their physical condition and a resilient attitude, thereby enabling them to pursue successful professional careers.

Increase and promote the recognition and endorsement, regionally, national and internationally, of the excellence of the Recipient's training programs, including but not limited to:

building partnerships to enhance artistic and educational standards and financial viability;

being an active member of the Australian Roundtable for Arts Training Excellence.

Provide responsible and accountable governance, including but not limited to:

having at least one Board member with demonstrated financial management expertise; and

undertaking an annual performance assessment and skills audit of the Board, identifying and rectifying any areas of deficiency.

Support its activities with high-quality and strategic management of resources, including but not limited to:

prudent and sustainable financial management;

actively seeking diversification of its funding base;

maximising efficiencies in the delivery of the Recipient's Activity, for example through regular reviews of the Recipient's administrative processes and structures, budgets, program delivery mechanisms and cost sharing arrangements; and

working to the Recipient's 2010-12 triennial strategic plan."

88. Thus although NIDA's revenue from payment of student fees for its full-time programs was only a little more than a quarter of the revenue derived from its Open and Corporate programs, the largest component of its funding was derived from its commitment to conducting an accredited program of full-time courses.

89. Ms Williams deposed that in the financial year ended 30 June 2011 NIDA had 110 full-time or part-time employees and 516 casual employees. In the following financial year it had 102 full-time or part-time employees and 538 casual employees. The figures were much the same in the earlier financial year and in the financial year ended 30 June 2013. In the financial year ending 30 June 2014 NIDA employed 130 full-time and part-time employees and 552 casual employees. Ms Spence, the head of the NIDA Open and Corporate divisions deposed that in the 2011 calendar year five staff were employed in the Corporate division and 12 were employed in the Open program. This did not include casual tutors who worked in both programs. No clear figures were provided of the number of staff employed full-time or part-time in the undergraduate and graduate programs or in the Vocational Education and Training division. The 2010 annual report had a section naming NIDA's staff. It listed 16 staff members under the heading "Open Program, Corporate Performance, Marketing and Development". It listed 26 staff members under the heading "Teaching Program". Other staff members were listed under the headings "Executive, Student and Staff Services, Library, Philanthropy and Events, Operations, Venues and Accounts". These were the numbers as at 1 March 2011.

90. Ms Williams described the "continuum of opportunity" 10-year plan as an overarching program that was informed by NIDA's vision of its being opened up to the community at large so as to give children and adults access and opportunities to realise in their creative potential at multiple points throughout their lives. She said that the elite training programs made up only a part of the whole of that continuum of opportunity vision. The 10-year plan was prepared for the Federal Government in 2010 and is for a period of 10 years from 2011 to 2021. The plan described its objectives as follows:

" Objectives of the 10-year development plan

Over ten years NIDA will continue to enhance its international standing as a centre for education and training at an elite level and facilitate practice-based research. While doing so it will reinforce the diversity

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of 21st century Australia and ensure internationally recognised achievements by Australian voices.

To do this it will be necessary to further develop NIDA's continuum of education and training opportunities and increase the participation from all sectors of Australian society who can benefit from NIDA's offerings.

Over the next ten years we will:

Maintain and deepen NIDA's continuum of access, designing NIDA's educational and training activities in order to:

Maintain and strengthen our role as an elite-level institution for exceptional talent;

Strengthen the educational opportunities for young people to develop an engagement with, and appreciation of, the arts and creative industries;

Create engaged and knowledgeable audiences from an early age; and

Provide alternate career pathways into the performing arts for those at secondary school level

Facilitate greater community access to NIDA's teaching and learning offerings through digital delivery, especially for regional and rural communities and supporting an understanding and respect for those communities and their singular cultures

Provide a platform for engagement with Australian indigenous culture and assist in disseminating the resulting work

Promote and support life-long learning within the creative industries by expanding offerings for emerging and mid-career artists and practitioners

Assist in expanding the cultural economy by creating a new generation of cultural leaders, mentors and cultural policy makers

Facilitate the development of new cross-platform work that reflects the opportunities of live performance and digital media

Broaden and strengthen NIDA's overall capacity to deliver training and education and collaborate internationally

Create infrastructure and organisation through a Centre for Contemporary Performance Practice which will support new initiatives and a program of research and development"

91. The plan then identified five initiatives, namely:

"1. [To] maintain and deepen NIDA's continuum of access to promote direct engagement with NIDA's educational and training activities;

2. [To] facilitate greater community access to NIDA's teaching and learning offerings through digital delivery, especially for regional and rural communities;

3. [To] provide a platform for engagement with Indigenous and Torres Strait Australians;

4. [To] promote and support life-long learning within the creative industries by expanding offerings for emerging and mid-career artists and practitioners; and

5. [To] assist in expanding the cultural economy by creating a new generation of cultural leaders, mentors and cultural policymakers."

92. In describing its first initiative NIDA stated that through its NIDA Open courses NIDA engaged with thousands of young people, but there was greater opportunity to work within the primary and secondary education system to build the skills of teachers, and to that end NIDA would seek to develop two teacher training qualifications which specialised in an advanced understanding of drama teaching and would assess the potential for delivering a one-year graduate Diploma in Education (Drama) and a three-year Bachelor of Education in Drama and Performance studies to provide participants with skills for teaching theatre. These courses would be delivered in partnership with a selected university or universities. In describing this initiative NIDA stated that:

"While NIDA's primary focus has been on the delivery of higher education courses at undergraduate and postgraduate level, we recognise that there is increasing demand and need for high quality courses for students who are not seeking

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degree qualifications. NIDA currently offers accredited Vocational Education and Training courses through NIDA Open, being currently one year (part-time) accredited diploma of Music Theatre and a four-week/two-week (part-time/full-time) certificate IV in Live Production, Theatre and Events."

93. The plan stated that there was an opportunity for NIDA to develop additional VET courses at varying levels for secondary school students. It also postulated the creation of specialised VET courses for "young digital entrepreneurs".

94. NIDA did not explain the admission that its primary focus had been on the delivery of higher education courses at undergraduate and postgraduate level. I would in any event infer from NIDA's own documents that those programs were its primary focus. I am not satisfied that at any material time they ceased to be its primary focus.

95. Having regard to the width of the meaning of "school" that has been adopted in the authorities and which I accept as applicable to cl 12(1)(c), I think that NIDA conducts a school not only through its undergraduate and graduate programs and its Vocational and Education Training Programs, but also through at least parts of its Open Program.

96. That may not be so for all of its Open Program. Some of its programs involve the offering of stage productions of well-known Australian children's books that were delivered to primary school students and their families and teachers designed to introduce and engage children in the performing arts from a young age. Short courses over two or five days were offered to adolescents and adults in many areas, such as music, theatre and TV presenting, writing, directing, production, design, film-making, acting and performance and so on.

97. But longer courses were offered, for example, over eight evenings once or twice a week for eight weeks. There were foundation courses offered in acting and performance over a course of eight evenings described as, by way of example, NIDA Acting Techniques, Screen Acting Techniques or voice. Specialised acting and performance courses over the same length of time were offered called, by way of example, Verbatim Theatre, Screen Test Workout, The Total Actor, and so on.

98. NIDA also offered advanced short courses, entry to which was by audition, that took place on one or two evenings a week over a half year. These courses were offered under headings such as Acting Ensemble, Screen Acting Ensemble, TV Presenters Ensemble, and so on. Some of these courses could lead to the grant of certificates that provide qualifications in certain employments. Thus a brochure in April 2013 issued by NIDA Open stated that "NIDA is one of the few certified training organisations that offers electives for the Certificate III in live production, theatre and events (technical operations). This July we are offering the elective - Design Apply and Remove Make-Up." The reference to Certificate III is evidently a reference to the Australian Qualifications Framework Specification. The award of such a certificate is not different in principle from the award of a diploma or degree. It is a certification that the person receiving the certificate has acquired a particular level of knowledge or skill in the designated area.

99. Applying the broader definition of "school" I consider that at least many of the programs offered through NIDA Open would qualify as the activities of a school.

100. NIDA led evidence of other of its operations, such as venue and costume hire which, considered by themselves, would not constitute the conduct of a school. I also doubt that many of its corporate development programs would be so characterised, but it is unnecessary to decide that question.

101. Considering its activities as a whole I would characterise NIDA as being a school or college, even if it were necessary to choose between its being a school or college on the one hand, or being a promoter of the dramatic arts on the other. Of course the two are not mutually exclusive. Even if its school-type activities are confined to its undergraduate and graduate programs and its Vocational Education and Training Programs, they are nonetheless activities carried out on a significant scale (State Superannuation Board v Trade Practices Commission at 306). I would go further and say that they were the "predominant and

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characteristic activity" of NIDA which are supported by its other activities. When the school-type activities of the NIDA Open Program are also taken into account that conclusion is even clearer.

102. For these reasons I conclude that the Chief Commissioner was right to refuse NIDA's application for an exemption from payroll tax from 1 July 2009 and for a refund of payroll tax paid, because NIDA during that period was a school or college within the meaning of cl 12(1)(c). The wages paid or payable by it were not exempt wages under that provision.

103. It is unnecessary to decide whether, if a different conclusion had been reached, all of the wages paid by NIDA would be exempt on the basis that all of its activities are directed to the obtaining of a charitable object, or whether it would only be the wages paid for work that was "intrinsically charitable" (for example, the wages paid to a teacher, but not those paid to an employee engaged in costume hire) that would be exempt. (For this distinction see
Federal Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204 at 221.)

104. For these reasons I order that the decision of the defendant to refuse the plaintiff's application for a refund of payroll tax paid for the period from 1 July 2009 to 30 June 2014 be confirmed. I order that the plaintiff's summons be dismissed. Prima facie, the plaintiff should pay the defendant's costs. I will hear the parties on costs.

 

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