Charitable Role


The charitable status of the ICLRQ was confirmed by the High Court of Australia in Incorporated Council of Law Reporting for the State of Queensland v Federal Commissioner of Taxation (1971) 125 CLR 659.

 

As Barwick CJ, with whom McTiernan J agreed, put it (at 667-669):

The question here is whether the production not for private gain of law reports, recording the decisions of a superior court in a judicial system in which the decision of an earlier case may itself in terms or by analogy, or in association with other such decisions determine the result of a later case, is a purpose beneficial to the community within the scope of the fourth head of charity as expressed in Pemsel's Case (1891) AC 531….

 

The sustenance of the law is a benefit of a material kind which ensures for the benefit of the whole community. Is not its administration, with regularity, and with as much consistency as a system based on human judgment can attain, as socially fundamental as the instances which I have taken from the preamble? Surely it is. Though perhaps not now universally accepted because no doubt not properly understood, it is true that the society cannot exist as such if it is not based upon and protected by justice under law: and nurtured by obedience to law. As I have said, justice under law requires, according to the system of law which we have entrenched in Australia, and I think enhanced, the ready availability of reports of the decisions of the superior courts.

 

Thus, to my mind, without seeking any analogy in cases which have gone before, the production of law reports of a superior court is within the equity and the spirit and intendment of the preamble and thus capable of forming a charitable purpose.

 

All that remains is to add the lack of private gain by the members of the Council. That the Council itself should profit by the production of the law reports cannot prevent the Council being a charitable institution. Indeed, the very fact that the Act exempts the income of a charitable institution concedes that such an institution may derive profits from its activities.

 

Here there are two significant matters. First, the memorandum of association forbids any distribution of the profits of the Council to or amongst its members. No doubt the presence of such a provision was material to the incorporation of the Council as a company limited by guarantee. Second, the actual distributions of the Council's profits have been confined to grants to the libraries of the Supreme Court of Queensland. Those libraries are themselves important adjuncts to the administration of the law. They facilitate the very purpose the production of the law reports is designed to achieve. They do so none the less because their holdings are not available to every member of the public but only to those with or seeking training in the law. Indeed they are available to all those groups of the community who in general can profit by their use. The application of the profits of the Council to the support of the Supreme Court libraries is itself, in my opinion, an application to charity.

 

In sum, we have here an incorporated body, an institution, not carried on for private gain which produces reports of the decisions of the Supreme Court of Queensland in book or magazine form. The production of such law reports is its sole purpose. In my opinion, that purpose is within the equity, or the spirit and intendment of the preamble to the Statute of Elizabeth and, being of general public benefit, is charitable. This conclusion is reinforced by but does not to my mind depend upon the circumstances that the reports which the Council produce are the only reports available of the decisions of the Supreme Court of Queensland and that the only distribution of profits made by the Council is by way of grant to the funds of the libraries of the Supreme Court of Queensland.

Windeyer J agreed, explaining (at 672):

In any country governed by the common law, the publication of the reports of decisions of the superior courts is essential for the continuance of the rule of law. The continuity of the common law and its characteristic capacity for development and change depend upon those who are concerned with its administration having a means of knowing the current course of precedents. Without that the law would become stagnant and cease to be a living stream. Ever since the time of the Year Books law reports have been the essential nourishment of the life of the common law. Their publication has always been for the public benefit; but in times past it was not a charitable undertaking because it was done for private profit. The purpose that the Council serves is a purpose of public utility, the advancement of legal learning by publishing reports. Profits it thereby gains are devoted to the further advancement of legal learning. This combination of objects and purposes suffices to make it a charitable institution.

Throughout its history, surplus funds from the ICLRQ have also been donated to the Supreme Court of Queensland Library to support a number of important projects.  Most recently, the ICLRQ was proud to assist in the establishment of the Sir Harry Gibbs Legal Heritage Centre on the ground floor of the new Queen Elizabeth II Courts of Law in Brisbane.