Coal Mining Industry (Long Service Leave Funding) Corp v Commissioner of Taxation [1999] FCA 249 (19 March 1999)

Last Updated: 24 March 1999

FEDERAL COURT OF AUSTRALIA

Coal Mining Industry (Long Service Leave Funding) Corp v Commissioner of Taxation [1999] FCA 249

TAXATION - statutory corporation established to administer scheme for collection of contributions to long service leave liability on the part of employers in the coal mining industry - contributions collected by means of tax imposed on employers calculated by reference to employment costs - whether corporation a "public authority" for the purposes of income tax liability

WORDS AND PHRASES - "public authority"

The Constitution (63 & 64 Vict. c. 12) s 82

Audit Act 1901 (Cth) s 63C

Coal Mining Industry (Long Service Leave Funding) Act 1992 (Cth) ss 6, 7, 8, 9, 35, 36, 37, 39, 40, 41, 42, 43, 44, 51

Coal Mining Industry (Long Service Leave) Payroll Collection Levy Act 1992 (Cth) s 9 and s 11

Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 (Cth) ss 4, 7, 8

Income Tax Assessment Act 1936 (Cth) s 23(d)

Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407 applied

Committee of Direction of Fruit Marketing v Australian Postal Commission [1980] HCA 23; (1980) 144 CLR 577 cited

Australian Tape Manufacturers Association Ltd v The Commonwealth [1993] HCA 10; (1993) 176 CLR 480 cited

COAL MINING INDUSTRY (LONG SERVICE LEAVE FUNDING) CORPORATION v THE COMMISSIONER OF TAXATION

NG 1004 OF 1998

HILL, LEHANE AND HELY JJ

22 MARCH 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1004 OF 1998

On appeal from a single judge of the Federal Court of Australia

BETWEEN:	COAL MINING INDUSTRY (LONG SERVICE LEAVE FUNDING) CORPORATION Appellant
AND:	THE COMMISSIONER OF TAXATION Respondent
JUDGES:	HILL, LEHANE AND HELY JJ
DATE OF ORDER:	22 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Court made on 16 September 1998 be set aside and in their place it be ordered that:

(a) the decision of the respondent concerning the objection to the assessment issued to the appellant for the year of income ended 30 June 1995 be set aside and in lieu thereof the objection be allowed.

(b) the matter be remitted to the respondent for reassessment of the appellant in accordance with law. 3. The respondent pay the appellant's costs of the appeal and of the proceedings at first instance.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1004 OF 1998

On appeal from a single judge of the Federal Curt of Australia

BETWEEN:	COAL MINING INDUSTRY (LONG SERVICE LEAVE FUNDING) CORPORATION Applicant
AND:	THE COMMISSIONER OF TAXATION Respondent

JUDGES:	HILL, LEHANE AND HELY JJ
DATE:	22 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The principal question in this appeal is whether the appellant (the Corporation) is a public authority constituted under an Act so that its income is exempt from income tax by operation of s 23(d) of the Income Tax Assessment Act 1936 (Cth). If, as the primary judge held, that issue is resolved against the Corporation, the further question arises whether the Corporation is nevertheless exempt from income tax on the basis that it enjoys Crown immunity. The primary judge decided that question also against the Corporation.

Background

2 The Corporation administers a fund the origin of which can be traced to events following a coal miners' strike in 1949. In the aftermath of the strike an award was published which provided for long service leave for employees in the coal mining industry. A particular employee's entitlement to long service leave was calculated by reference to the number of shifts worked for one or more employers in the industry. Thus the entitlement was "portable", in the sense that an employee might be employed successively by several different employers in the industry, taking his accrued entitlement to long service leave with him to each new employer and, while working with that employer, building upon it. A consequence was that when, ultimately, an employee became entitled to take long service leave, the full financial liability would fall upon the employer by which he was then employed, however short in duration that employment might have been. Unless means were provided of spreading the burden equitably among employers in the industry, at least two consequences might follow. Some collieries might be subjected to financial burdens which they were unable to meet; and collieries would be discouraged from employing experienced miners.

3 To alleviate those difficulties a scheme was established under complementary Commonwealth and State legislation. In broad terms, Commonwealth legislation imposed an excise on coal, the proceeds of which were credited to a Commonwealth trust fund. From that fund, the Treasurer made grants to the States; and each State applied the grants to reimburse employers who met their long service leave obligations under the award. That scheme operated until 1992.

The present scheme

4 The operation of the arrangements for funding long service leave liabilities in the coal industry was reviewed by Mr L J Willett, then chairperson of the Superannuation Fund Investment Trust. His report was substantially adopted by the Federal Government: in December 1991 the Government announced a new policy, brought into effect by legislation introduced in 1992. The following extracts from the second reading speech for the Coal Mining Industry (Long Service Leave Funding) Bill 1992 made by the Minister for Finance describe the new scheme and the principal ways in which it differs from its predecessor:

"The Government agrees with the general thrust of Mr Willett's report and believes that responsibility for administering the fund should be returned to the industry. It recognises, however, that in the short run this may impose significant cost burdens on sections of the industry.

Existing arrangements have operated on a `pay as you go' basis, and a substantial unfunded liability for long service leave has accrued. Moreover, large scale, highly productive producers - largely represented by the Queensland Mining Council - raised concerns that they presently cross-subsidise the operations of more labour-intensive mines, predominantly the underground coalmining industry in New South Wales.

In commenting on the Willett report's recommendations, industry parties and State governments agreed that outstanding liabilities and future accruals should be funded on a more equitable and rational basis related to employment costs. The Government believes that the new arrangements safeguard the public interest in maintaining a viable coalmining industry whilst representing an appropriate balance between the principles of efficiency and equity and the interests of the disparate parties.

The Bills terminate the present excise funding arrangement and implement a new industry managed, fully funded scheme. With the cooperation of the States, it is envisaged that the new funding arrangements will become fully operational from 1 January 1993.

The principal features of the scheme are as follows: there is to be a single national scheme under the Commonwealth legislation, and its management is to be the responsibility of a board of directors made up of employer and union representatives. The legislation will establish a Coal Mining Industry (Long Service Leave Funding) Corporation. The Corporation will be wholly self financing and will have two functions. The first will be to manage the coalmining industry long service leave trust fund for the purpose of reimbursing participating companies for long service leave taken by coalminers and other eligible employees. The second will be to collect levies from companies for the purpose of funding long service leave and meeting the costs of the Corporation.

...

It is envisaged that the scheme is to be fully funded over a period of 10 years, including the unfunded liability for leave accrued prior to 1 January 1993. Presently, it is estimated that the initial levy will be in the vicinity of 6 per cent of payroll. The actual rate of levy will be precisely determined by an actuarial review conducted under the auspices of the Corporation. As I have already indicated, there are compelling reasons for continuing government involvement through a statutory Corporation.

First, the new arrangements will substantially increase long service leave funding costs for many companies, especially by reason of the requirement to fully fund accrued liabilities. The formation of a statutory corporation, rather than a private company, has enabled company income tax deductibility of contributions to the fund. The rates of payroll levy that are required to finance ongoing accruals of long service leave and to fund the accrued liability will impose significantly increased cost burdens on the industry. These rates of levy will, for some companies, equate to a cost of about 60c or 70c per tonne compared with the present 20c per tonne. The burden will fall most heavily on relatively labour-intensive mines.

In view of the potential cost impact of the new arrangements on sections of the industry, particularly the requirement to achieve full funding, it is appropriate that the tax treatment of levy contributions to the new scheme should be as favourable as the tax treatment of payments under the current excise funding arrangements. As excise payments are deductible for company income tax purposes it is anticipated that there will be no additional cost to revenue.

The provision of tax deductibility for levy contributions also recognises that, unlike most other employers, coal companies are being compelled to contribute to a long service leave fund. Other employers who make provision for their long service leave liabilities in the normal way retain the funds so provided as internal working capital. Deductibility of contributions will help offset the cost of replacing that working capital.

Secondly, the new long service leave scheme removes the inefficiencies and inequities associated with the present arrangements, and its full funding will ensure the portability and preservation of benefits. It is an important complementary component of the Government's coal industry policy reforms, which are designed to respond to changed circumstances and help secure the industry's future into the next century.

Thirdly, continuing Commonwealth involvement provides a guarantee of continuity and for a smooth transition to the privately funded scheme or schemes with a minimum of industrial friction. I commend the Bill to the House and present the explanatory memorandum."

5 The legislation enacted in 1992 comprised the Coal Mining Industry (Long Service Leave Funding) Act 1992 (Cth) (the Funding Act 1992 ), the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act (Cth) (the Collection Act 1992 ) and the Coal Mining Industry (Long Service Leave) Payroll Levy Act (Cth) (the Levy Act 1901 ). That legislation gives effect to the objectives described in the second reading speech. Commonwealth Government involvement, through the use of a statutory corporation and, importantly, the funding of the scheme by the use of the Commonwealth's taxing power, is maintained; but there is substantial industry participation in the administration of the scheme, particularly through representation on the board of the Corporation of both employers and employees. The new scheme differs significantly from its predecessor in that the States no longer play a role in its administration, the scheme is to be fully funded and funding is by way of a payroll tax or levy, not an excise on coal produced.

6 The primary judge summarised the essential provisions of the Funding Act. We gratefully adopt that summary:

"The object of the Funding Act is stated in section 6 to be to provide for a new long service leave funding scheme in the black coal mining industry by:

(a) establishing the Corporation;

(b) requiring the Corporation to establish and maintain a Coal Mining Industry (Long Service Leave) Fund and to make payments out of the Fund to employers in the industry to reimburse them for long service leave payments made to eligible employees; and

(c) appropriating money for the purposes of the fund in respect of the amounts of payroll levy paid by employers under the Collection Act.

Under section 7 the functions of the Corporation are:

(a) to establish and maintain the Fund; and

(b) to make payments into and out of the Fund, and invest the Fund, in accordance with this Act and the Payroll Levy Collection Act; and

(c) to advise the Minister as to the rates of payroll levy that should be imposed on employers; and

(d) to monitor payments of the payroll levy and keep the Minister informed of any failure by an employer to pay the payroll levy; and

(e) to advise the Minister generally on the operation of this Act, the Payroll Levy Act and the Payroll Levy Collection Act; and

(f) such other functions as are conferred on the Corporation by the Payroll Levy Collection Act.


Under section 8 the Corporation has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions. However, except with the written consent of the Minister, the Corporation must not enter into a contract under which, or as a result of which, the Corporation would or might be liable to pay, in respect of any one transaction, any commission, brokerage or fee exceeding $100,000.

Under section 9, there is to be a board of directors of the Corporation. The directors are to be appointed by the Minister. The persons to be appointed are to represent bodies and organisations specified in the section. The Minister must consider any person so appointed to be suitable to represent those bodies or organisations, after consultation with the bodies or organisations. The Minister may terminate a director's appointment for misbehaviour or physical or mental incapacity. The Minister may also terminate a director's appointment if the body or organisation which the director represents requests the Minister to terminate that director's appointment. Under section 29, a director holds office on such terms and conditions as are determined by the Minister.

Under section 35, the amount standing to the credit of the Coal Mining Industry Long Service Leave Fund established under the States Grants Act was to be paid to the Corporation as soon as practicable after commencement of that section. Upon the payment being made, the States Grants Act was to be repealed.

Under section 36(1), there are to be payable to the Corporation out of the consolidated revenue fund of the Commonwealth, amounts equal to the amounts of payroll levy under the Collection Act. However, under section 36(2) the amounts payable are to be reduced by such amount or amounts as are determined by the Minister to represent the expenses incurred by the Commonwealth in procuring the enactment of, and in connection with the administration of, the Funding Act, the Levy Act and the Collection Act.

Under section 37, the Corporation may not borrow money in excess of $50,000 for a single purpose without the written approval of the Minister.

Section 63C(1) of the Audit Act 1901 (Cth) provides that where an Act declares a body corporate, incorporated for a public purpose by the Act, to be a public authority to which a division of Part XI applies, the provisions of that division apply to and in relation to the body corporate. Section 39 of the Funding Act provides that the Corporation is a public authority to which Division 2 of Part XI of the Audit Act applies. Division 2 provides for maintaining bank accounts, investment of moneys, keeping proper accounts and records in accordance with the accounting principles generally applied in commercial practice, audit by the Auditor-General and the preparation and submission of an annual report and financial statements to the Minister.

Part VI of the Funding Act deals with the Coal Mining Industry (Long Service Leave) Fund (`the Fund'). Under section 40, the Corporation must establish, and maintain in its books of account, the Fund. All money received by the Corporation, other than payments made by employers under the Collection Act in respect of payroll levy, is to be paid into, and is taken to be part of, the Fund. Under section 41, the Fund is to be applied only in making payments that are required or permitted by the Funding Act or the Collection Act to be made out of the Fund.

Section 42 of the Funding Act provides for investment of the Fund. Under section 42(1), the Minister may set out principles or guidelines to be followed in respect of the investment of the Fund. The Board is required to prepare a plan for the investment of the Fund and must revise that plan every 12 months. Any plan for the investment of the Fund must, under section 42(4), conform with any principles or guidelines set out by the Minister under section 42(1). If the Minister is of the opinion that a plan or revised plan prepared by the Corporation does not conform with any principles or guidelines set out by the Minister, the Minister may return the plan to the board of the Corporation for reconsideration in accordance with any directions given by the Minister. The board must then revise the plan in accordance with the Minister's directions and send a copy of the revised plan to the Minister.

Under section 43, the board of the Corporation must obtain advice from an actuary as to:

(a) the amount that is estimated will be the liability of employers to make payments to eligible employees; and

(b) the rate of the payroll levy that, having regard to the amount to be transferred under section 35 from the Original Scheme to the Fund, needs to be imposed to ensure that:

(i) the Fund will be sufficient to discharge the liability of employers to make payments to eligible employees; and

(ii) the Fund will be sufficient at the end of the period of 10 years to discharge so much of the liability of employers to make payments as is not discharged prior [to] the end of that period.

Three years, five years and seven years after the commencing date of the Funding Act, the board of the Corporation is required to obtain advice from an actuary as to:

(a) whether the rate of payroll levy imposed when the advice is given would be adequate to ensure that:

(i) the Fund will be sufficient to discharge the liability of employers to make payments to eligible employees;

(ii) the Fund will be sufficient at the end of the period of 10 years to discharge so much of the liability to the employees to make payments to eligible employees as is not discharged; and

(b) if not, the rate that would be so adequate.

Under section 44, when an employer makes a payment to an eligible employee (as defined) in respect of the employee's entitlement to long service leave, an amount is payable to the employer out of the Fund. The amount is to be equal to whichever is the lesser of the amount of the payment to the employee and a maximum amount determined in accordance with a formula set out in section 44. Under section 51, expenses incurred by the Corporation are also to be paid out of the Fund."

7 The Collection Act imposes a levy in respect of "eligible wages" paid to "eligible employees". An employer of eligible employees must make a return each month of eligible wages paid to eligible employees; the Corporation may specify some other person to receive the returns but if it does not do so then the returns are to be given to the Corporation. The Corporation is given power to extend the time for payment of levy and to make arrangements for payment of levy by instalments. If any levy is unpaid after the due date for payment then additional levy, in the nature of interest, is payable on it; the Corporation is given power to remit additional levy. Levy (s 9) is a debt due to the Commonwealth and is payable to the Corporation, or to a person specified by the Corporation. The Corporation, or other person specified by it, may sue for recovery of the levy. The Minister may give directions as to how amounts paid to, or recovered by, the Corporation or another person under the section are to be dealt with before they are paid into the Consolidated Revenue Fund.

8 Section 11 of the Collection Act is as follows:

"11(1) The Corporation has the following functions on behalf of the Commonwealth under this Act:

(a) to receive returns made, or financial statements or certificates given, under this Act; and

(b) to receive payments of levy made under this Act; and

(c) to receive payments of additional levy made under section 7; and

(d) to sue for and recover amounts of levy and amounts of additional levy that have not been paid.

(2) The Corporation may, on behalf of the Commonwealth, enter into an agreement with a person authorising that person to perform on behalf of the Commonwealth any one or more of the functions referred to in subsection (1).

(3) The Commissioner of Taxation has power to enter into an agreement with the Corporation under subsection (2) for the performance by the Commissioner of Taxation of a function referred to in subsection (1) and, if such an agreement is entered into, the Corporation is liable to pay to the Commissioner of Taxation such charges for the performance of that function as are agreed between the Corporation and Commissioner of Taxation."

9 Succeeding sections confer on the Commissioner of Taxation, if an agreement is entered into as contemplated by s 11(3), powers, as sufficiently summarised in the headings of the sections, of access to premises and books and to obtain information and evidence.

10 The effect of the Levy Act was described by the primary judge as follows:

"Under section 4, levy is imposed on eligible wages paid to eligible employees after commencement of the Act. The rate of the levy is the prescribed percentage of the eligible wages paid. The Governor-General is authorised by section 8 to make regulations prescribing a percentage for that purpose. However, before making such regulation, the Governor-General is to take into consideration any advice given to the Minister by the Corporation under the Funding Act as contemplated by section 7(c) of that Act."

The trial judge's decision

11 The primary judge took as his starting point the decision of the Full Court of this Court in Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407, particularly the series of propositions identified by Hill J at 429, 430 as emerging from the earlier cases. Bank of Western Australia concerned the exemption from sales tax, under the now superseded legislative regime, of "an authority which is completely controlled by, and the expenditure of which is exclusively borne" by the Government of the Commonwealth or a State or Territory; but it was not suggested that there is any relevant distinction between the meaning of "authority" in that context and that of "public authority" in s 23(d). The primary judge identified as the policy underpinning s 23(d) that income of a governmental body should be available for application towards the purposes of the body without deduction of tax. A corollary of that rationale was that the exemption should be available only to a body which was "truly of government". His Honour continued:

"The kinds of considerations identified by Hill J indicate that Courts have had regard to that object. Thus, looking at the positive criteria identified by Hill J, the body must be one set up to exercise control or execute a function in the public interest, being a function of government. The body must exercise control, power or command for the public advantage or execute a function in the public interest. In relation to the negative criteria, a private body, established not for the purpose of performing a government function but for profit, will not be a public authority."

12 His Honour then considered the various powers given to the Minister by the Funding Act and the limitations on those powers; he considered also the extent to which the Corporation and its Board were to operate independently of the Minister. He noted that the application of the Audit Act (Cth) tended to suggest that the Corporation was a public body but observed that its application did not, by itself, mean that the Corporation performed a function of government. His Honour regarded it as particularly significant that the "tax gathering function" was put to be performed by the Corporation itself, not by the Commissioner. That indicated, in his Honour's opinion, that the Corporation performed its functions not in the interests of the public generally but in the interests of employers in the coal mining industry and reinforced his Honour's view that, although the scheme might advance a public interest in assisting the black coal mining industry, nevertheless the income of the Corporation did not benefit any government function or public interest but would benefit only the employers liable under the Award to make payments in respect of long service leave and to pay the payroll levy. If the income were not exempt the consequence would be that the levy would have to be increased; but that would involve no detriment to the Government or to the public interest, only to the individual employers. Accordingly, the Corporation was not a public authority. His Honour proceeded to hold that the Corporation was not entitled to Crown immunity.

The case on appeal

13 The list of propositions in Bank of Western Australia at 429, 430 is as follows (omitting citations):

"1. A question whether a particular entity is an authority will be a question of fact and degree dependent upon all the circumstances of the case ... . No one factor will be determinative, rather there will be a "range of considerations" ...

2. A private body, corporate or unincorporated, established for profit will not be an authority ...

3. Incorporation by legislation is not necessary before a body may be classified as an authority ...

4. For a body to be an authority of a State or of the Commonwealth, the body in question must be an agency or instrument of government set up to exercise control or execute a function in the public interest. It must be an instrument of government existing to achieve a government purpose ...

5. The body in question must perform a traditional or inalienable function of government and have governmental authority for so doing ...

6. It is not necessary for a person or body to be an authority that he, she or it have coercive powers, whether of an administrative or legislative character ... . Conversely the fact that a person or body has statutory duties or powers will not of itself suffice to characterise that person or body as an authority ...

7. At least where the question is whether a body is a "public authority" the body must exercise control, power or command for the public advantage or execute a function in the public interest ... . The central concept is the ability to exercise power or command ..."

14 Hill J proceeded to consider whether, despite the apparent alternatives in proposition 7, "exceptional power or authority" was a necessary attribute of a public authority and concluded, at 430, that:

"there is such a requirement and ... it flows out of the word "authority" itself, which suggests that the body is able to exercise command or authority, something which a mere member of the public cannot do in a public sense."

15 Subject to one matter, ultimately it was not suggested that we should reconsider what Hill J said in Bank of Western Australia and we see no need to do so. The one matter is the reference in proposition 5 to a "traditional or inalienable" function of government. That phrase should not be taken literally as referring to matters which have been regarded from time immemorial as functions of government or to functions of which government cannot divest itself. Rather, as Mason and Wilson JJ said in Committee of Direction of Fruit Marketing v Australian Postal Commission [1980] HCA 23; (1980) 144 CLR 577 at 594:

"The range and scope of governmental purposes may vary from time to time, and will be determined by the content of the public laws that are in force for the time being."

16 That prompts a further comment, perhaps equally obvious: a synthesis, such as that represented by the list in Bank of Western Australia, helpful as it may be in understanding the course of prior authority, cannot be regarded as the beginning and the end of the inquiry where the question is very much one of "fact and degree dependent upon all the circumstances of the case".

17 It was submitted on behalf of the Corporation, and we agree, that for present purposes it is particularly important that the scheme is funded by the use of the taxing power of the Commonwealth and that the Corporation is given, by s 11 of the Collection Act, the functions on behalf of the Commonwealth of administering and recovering the tax. Indeed, in our view, the use of the taxing power and the delegation of the tax collecting function are powerful indications that the Corporation is performing functions of government. To delegate to the Corporation a tax collecting function is to confer upon it extraordinary authority, an authority to be exercised on behalf of the Commonwealth. No doubt these matters are not conclusive: see Australian Tape Manufacturers Association Ltd v The Commonwealth [1993] HCA 10; (1993) 176 CLR 480 at 501. But, as Mason CJ and Brennan, Deane and Gaudron JJ said in Australian Tape Manufacturers, at 503:

"In Australia, the fact that a levy is directed to be paid into the Consolidated Revenue Fund has been regarded as a conclusive indication that the levy is exacted for public purposes."

18 See also per Dawson and Toohey JJ at 522.

19 The Corporation performs a government function because it collects a tax, administers a fund comprising amounts appropriated from the Consolidated Revenue Fund relating to the tax and makes payment out of the Fund pursuant to statute. All this is done in pursuance of government policy.

20 The force of those considerations is not, in our view, diminished by the circumstance that the amounts payable to the Corporation out of the Consolidated Revenue Fund under s 36(1) of the Funding Act are reduced, by force of s 36(2), by:

"... such amount or amounts as are determined by the Minister to represent the expenses incurred by the Commonwealth in procuring the enactment, and in connection with the administration, of this Act, the Payroll Levy Act and the Payroll Levy Collection Act."

21 Again, as senior counsel for the Authority pointed out, s 82 of the Constitution provides that the costs, charges and expenses incident to the collection, management and receipt of the Consolidated Revenue Fund are to form the first charge thereon. It is, in any event, hardly surprising that the costs of the scheme should be borne out of revenue raised in order to implement the scheme, rather than from the Consolidated Revenue Fund generally. It is not a circumstance, in our view, which has much significance in characterising the scheme or the body which administers it.

22 Further, the second reading speech makes it plain that the purpose of the scheme (and, accordingly, the function of the Corporation) was not simply to protect private employers from some of the consequences of the long service leave arrangements established by the award. It was recognised that it was desirable that, on an actuarial basis, the liabilities of employers under the award be fully funded and that this could only be done by spreading the burden equitably among employers and by a process of compulsion. And, most importantly, it was accepted that this had to be done not for the protection or benefit of employers, but for the protection of the public interest in maintaining an industry which produced a commodity of particular importance to Australia's export trade. That is what was seen to justify the use of the taxing power, necessarily available only for Commonwealth purposes, and the extraordinary delegation to the Corporation of the typically governmental function of collecting the levy. The degree of ministerial control over the affairs and activities of the Corporation and the circumstance that its accounts are to be audited by the Auditor-General reinforce, because they are consistent with, the proposition suggested by those matters: that the Corporation is a public authority. Industry participation through a board comprising representatives (appointed by the Minister) of employers and employees, whose powers are quite closely circumscribed, does not, in our view, require a contrary conclusion any more than did the rather more extensive participation described in the Fruit Marketing case. Nor, in our view, is it particularly significant that the direct beneficiaries of the fund administered by the Corporation are employers who have become liable to make payments under the Award in respect of long service leave. Considerably more important, in our view, is the public purpose actuating the establishment of the fund from which the payments to private employers are to be made. That purpose, in our opinion, was a public purpose; and the Corporation has been given extraordinary power and authority to perform a public purpose of government. The consequence is that the Corporation is a public authority for the purposes of s 23(d).

23 It is unnecessary, in those circumstances, to consider the alternative submission that the Corporation is entitled to Crown immunity.

Conclusion and Orders

24 Accordingly, the appeal will be allowed. The orders of the Court are that:

1. The appeal be allowed.

2. The orders of the Court made on 16 September 1998 be set aside and in their place it be ordered that:

(a) the decision of the respondent concerning the objection to the assessment issued to the appellant for the year of income ended 30 June 1995 be set aside and in lieu thereof the objection be allowed.

(b) the matter be remitted to the respondent for reassessment of the appellant in accordance with law.

3. The respondent pay the appellant's costs of the appeal and of the proceedings at first instance.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 22 March 1999

Counsel for the Appellant:	Mr R J Elliott QC with Mr M Richmond
Solicitor for the Appellant:	Allen Allen & Hemsley
Counsel for the Respondent:	Ms R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 February 1999
Date of Judgment:	22 March 1999