Elston v Commonwealth of Australia [2013] FCA 108

Elston v Commonwealth of Australia [2013] FCA 108

“The statutory authority for the allocation of an ABN is to be found in s 8 and s 10 of the A New Tax System (Australian Business Number) Act 1999 (Cth) (ABN Act). The ABN Act applies to a “government entity” AS IF it were an “entity”, each as defined: s 5 of the ABN Act. The term “entity” is defined by the ABN Act by way of incorporating by reference the definition of that term in s 184-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). It is not necessary to set out that definition of “entity”, but it is instructive to set out the note to it, which accurately states a feature of the definition: Note: The term entity is used in a number of different but related senses. It covers all kinds of legal persons. It also covers groups of legal persons, and other things, that in practice are treated as having a separate identity in the same way as a legal person does.

In short, what is an “entity” for the purposes of the ABN Act may not be a separate legal entity for wider purposes. For the purposes of the ABN Act, the term “government entity” is defined by s 41 of that Act in a way that includes organisations and agencies of the Executive Branch of government which do not have a legal personality separate from the body politic itself: “government entity” means:

(a) a Department of State of the Commonwealth; or
(b) a Department of the Parliament established under the Parliamentary Service Act 1999 ; or
(c) an Executive Agency, or Statutory Agency, within the meaning of the Public Service Act 1999 ; or
(d) a Department of State of a State or Territory; or
(e) an organisation that:

  • (i) is not an entity; and
  • (ii) is either established by the Commonwealth, a State or a Territory (whether under a law or not) to carry on an * enterprise or established for a public purpose by an * Australian law; and
  • (iii) can be separately identified by reference to the nature of the activities carried on through the organisation or the location of the organisation;

whether or not the organisation is part of a Department or branch described in paragraph (a), (b), (c) or (d) or of another organisation of the kind described in this paragraph.”

Click to access elston-v-commonwealth-of-australia-2013-fca-108.pdf