David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated (No. 2) [2010] QCAT 471

QCAT Queensland Civil and Administrative Tribunal CITATION: David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated (No. 2) [2010] QCAT 471 PARTIES: David YOHAN representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated APPLICATION NUMBER: ADL021-10 MATTER TYPE: Anti-Discrimination Matters HEARING DATES: 9 September 2010 and 24 September 2010 DECISION OF: P Roney, Member DELIVERED ON: 24 September 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for dismissal of the complaint related to racial discrimination and vilification upheld APPEARANCES and REPRESENTATION: APPLICANTS: Mr SJ Hamlyn-Harris of Counsel instructed by Ryan Kruger Lawyers RESPONDENTS: Mr Murdoch of Counsel, instructed by Anderssen Lawyers CATCH WORDS: Practice and procedure – application for determination of whether Sporting Bodies are established for supporting athletic purposes and not for purpose of making a profit. Anti- Discrimination Act s.46(1)&(2), s.95 exemptions to prohibitions upon discriminatory conduct for non-profit incorporated associations as distinct from clubs. Meaning of a “club” as an association that carries out its purposes for the purposes of making a profit. Background 1. This is an application in which both the Applicant and Respondents joined in seeking the summary determination of the question of whether the -- 1 of 12 -- 2 Respondents are exempt from the provisions in the Anti-Discrimination Act 1991 (“the Act”) which prohibit unlawful discrimination and vilification on the basis it is contended that they are non-profit associations and therefore exempt or excluded from the operation of the legislation. If they are exempt, it will mean the Applicant, and any party whom he may in the future seek to represent, will not have open to them the opportunity to argue that that alleged exclusion of certain basketball teams from the Brisbane Basketball competition in 2009 was conduct which was unlawful on the grounds that it discriminated against players in those teams on the grounds of race. It will be a live issue in the proceeding as to whether the Applicant and parties whom he seeks to represent have been subject of victimisation, otherwise unlawful under the Act. 2. The Applicant was the coach of and coordinated basketball teams under the PAWES umbrella. He alleges that there were a series of incidents by which each Respondent was involved in the exclusion of PAWES teams from participation in the Brisbane Basketball competition in the period from mid April 2009 until late September 2009. In simple terms, the competition from which the PAWES teams are alleged to have been excluded was a competition run by the Second Respondent in Brisbane. The First Defendant is what might be described as the primary overseeing body for the sport of basketball in Queensland, and in that context oversees and has an active role in the conduct of the Brisbane Basketball competition run by the Second Respondent. It is also involved in other competitions in other provincial areas in Queensland. 3. The two questions for my determination are; first, whether the provisions of the Act which prohibit discrimination in the club membership and affairs area (chapter 2 division 9 of the Act) do not apply to the Respondents because each of them is not a “club” as that term is defined in the dictionary to the Act. Secondly, whether the provisions of the Act which prohibit discrimination of goods and services area (chapter 2 division 4 of the Act) do not apply so that therefore the Respondents are exempt because of the provisions in section 46(2) of the Act which apply to entities which are established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes but which do not carry out its purposes for the purpose of making a profit. The interaction between the two relevant parts of the Act is such that the practical purposes each mirrors the other in the manner in which it operates. 4. Section 46 provides as follows: “46 Discrimination in goods and services area (1) A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person-- (a) by failing to supply the goods or services; or (b) in the terms on which goods or services are supplied; or (c) in the way in which goods or services are supplied; or (d) by treating the other person unfavourably in any way in connection with the supply of goods and services. -- 2 of 12 -- 3 (2) In this section, a reference to a person who supplies goods and services does not include an association that-- (a) is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and (b) does not carry out its purposes for the purpose of making a profit.” 5. To the extent that it might be contended that the provision of or facilitation of a basketball competition is a supply of “services” within section 46, there is no prohibition on discrimination by the organisation which supplied the service if it was established, inter alia, for sporting purposes and “does not carry out its purposes for the purpose of making a profit”. None of the terms in section 46(2) are defined in the Act itself. 6. Section 93 of this Act prohibits a “club” from discriminating in club membership. Sections 94 and 95 contain prohibitions on discrimination in determining who should be members, and in respect of members’ discrimination by the club in the membership and affairs area. The Applicant proposes to put an argument that in some way the conduct to which he and those he represents were subjected arguably fell within the prohibitions in sections 94 and 95 and that the Respondents were clubs caught by those provisions. The definition of “club” appears in the dictionary, and is defined as follows: ““club” means an association that – (a) is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and (b) carries out its purposes for the purpose of making a profit;” 7. The word “association” is not defined in the Act. The prohibitions in club membership areas only apply to clubs which carry out their purposes for the purpose of making a profit and do not apply in circumstances, to use the wording of section 46, where the association “does not carry out its purposes for the purpose of making a profit”. The Constitutions and purpose of the Respondents 8. It is common ground that both Respondents were established for sporting purposes and were associations in the meaning of that term in sections 46(2) and in the definition of “club”; and were established for one of the relevant purposes within the terms of section 46(2)(a) and the purposes contemplated in the first part of the definition of club. The real issue then was whether either or both of the Respondents could be said not to carry out its purposes for the purpose of making a profit, or whether in fact either or both of them did carry out its purposes for the purpose of making a profit. As to that issue, there was affidavit evidence from Mr Graham Burns, the chief executive officer of the First Respondent, and Ms Tracey Rowe, the general manager of the Second Respondent. Each of Mr Burns and Ms Rowe was cross examined. The constitutions of both entities were in evidence, as were annual reports and -- 3 of 12 -- 4 financial statements for those entities for the 2009 year, the relevant year which the alleged contraventions occurred. 9. The constitutions of both entities essentially provide that the purpose of those entities is to promote the sport of basketball. Clause 49 of the constitution of the First Respondent provides that the income of the association must be used and applied solely in the promotion of the association’s objects and in the exercise of its powers. Clause 49.2 of the constitution prohibits the distribution of income or property to any members of the association, thereby ensuring that whatever surplus income is derived from any of the association’s activities, that it remains within the organisation. Clause 49.2 and 49.3 of its constitution provide as follows: “49.2 No portion of the association’s income or property may be distributed, paid or transferred directly or indirectly by way of dividend, bonus or otherwise by way of profit among any of the association’s members. 49.3 However, this does not prevent: (a) the association paying interest to a member in good faith on an amount advanced by the member to the association; or (b) remuneration for services actually rendered to or for the association; or (c) the payment or reimbursement of out of pocket expenses, money advanced, reasonable and proper charges for goods hired or leased by the association or reasonable and proper rent and outgoings for premises let to the association; or (d) the payment or transfer of money (including profits) to an affiliated association solely for the control or promotion of basketball or for the promotion of any of the association’s objects. 10. Clause 54 of its constitution provides that even when the association is wound up and there are surplus assets, the surplus assets must not be distributed amongst members but must be given to another entity which has objects similar to those of the association. The stated objects of the First Respondent refer in general terms to the object of managing generally the sport of basketball, the registration of players, the resolution of disputes, the promotion for coaching and talent identification and the like. No part of those objects includes as its object the conduct of the affairs of the association for profit or gain. 11. Similarly the constitution of the Second Respondent provides that its objects are to encourage or promote amateur basketball in Brisbane, and oversee the administration and management of the game in Brisbane, to hire coaches, conduct tournaments and the like. Again, no part of its objects mention as one of its objects the carrying on of its activities for profit, although its powers include the power to buy sell and deal with all kinds of articles and commodities, and carry out building or construction work and to invest and deal with the money with the association. 12. Clause 28 of the constitution of the Second Respondent provides that the income and property of the association, how so ever derived, is to be used and applied solely in promotion of its objects and no portion was to be distributed, -- 4 of 12 -- 5 paid or transferred directly or indirectly by way of dividend, bonus or otherwise by way of profit to or amongst the members of the association. Clause 31 provides that in the event of the association being wound up and in the event of a surplus that surplus was not to be paid or distributed amongst members, but to be transferred to another institution having similar object. The financial affairs of the Respondents 13. By reference to the annual reports of the two Respondents it may be seen that each of them is an organisation of some considerable substance and derives substantial amounts of income and holds significant assets from time to time. For example, the First Respondent derived very substantial amounts of income in the 2009 financial year; in excess of $600,000 for the conduct of competitions, in excess of $400,000 from registration fees, in excess of $400,000 by way of grants from State Government and Australian Sports Commission, in excess of $400,000 in respect of contributions and memberships, $61,000 from the sale of merchandise, and $65,000 income by way of bank interest. Despite that, in the 2009 financial year it operated at a loss of $90,442. In the previous year its net profit was an amount of $2,542. It had retained profits from previous years which it had carried forward of well in excess of $660,000. It had assets of approximately $1.2 million and current liabilities of just short of $700,000. 14. The Second Respondent operated a substantial basketball centre in Brisbane. The building which it operates is the headquarters of Brisbane Basketball, and is on land owned by the Brisbane City Council and leased to it. It generated substantial amounts of income from membership fees, player contributions and the like. It operated to the Basketball Centre in Brisbane 7 days per week, and conducts nightly games, social competitions and junior competitions. It too derived substantial amounts of income in recent years. In the 2008 financial year it had revenue of approximately $1.16 million and in 2009 slightly in excess of $1million but operated at a loss before tax in the 2009 year of slightly in excess of $30,000. In the previous year it had a profit of approximately $63,000. It had current assets of approximately $170,000, essentially in cash, but had property assets of approximately $1.5 million. The income it derived was shown to have been obtained from court fees and hire, registration fees, rental paid by a canteen operator, signage, advertising, contributions of players toward touring costs and interests. 15. The Applicant submitted, by reference to these financial statements, that it may be seen that both entities derived substantial amounts of income or revenue in the relevant year and indeed in past years, and that therefore each made a profit in one sense in which that expression might be used, namely the receipt of income from the conduct of commercial activity, or alternatively pursued a policy of achieving a surplus in the discharge of the organisations’ purposes. 16. The immediate difficulty with such an approach is of course that to apply a test of that kind would require one to examine the subjective states of mind of those who were managing a particular organisation from time to time, and also examine the extent to which pursuit of the policy of making a surplus or profit was in fact being achieved. This would mean that if that were the test, the question of whether an entity which is established for sporting purposes was one which was being carried on for the purposes of making a profit might vary -- 5 of 12 -- 6 from year to year depending on precisely what activity it engaged in. The policy to which the Act is directed 17. I was informed that there was nothing in the Explanatory Memorandum to the Act, nor in the parliamentary debates which introduced it, which is relevant to or shows any light upon what was sought to be achieved by the exclusion from the operation of the provisions of the Act, sporting associations that did not carry out their purposes for the purpose of making a profit. 18. In the preamble to the Act, the Parliament has set out its reasons for enacting the Act. One of those is to make provision for the promotion of equality of opportunity for everyone by protecting them from unfair discrimination “in certain areas of activity”. Similarly, section 6 of the Act states that one of its purposes is “to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. Implicitly, those stated objects, and the scope of the prohibitions in the Act themselves appear to recognise that it is not sought to extend its operation to provide protection from unfair discrimination in all areas of activity which it might be encountered in the community. It may therefore be inferred that the exclusion of its operation to, inter alia, sporting associations which do not carry out its purposes for the purpose of making a profit is a policy decision designed not to provide protection from discrimination in that context. 19. There have been four decisions of the Anti-Discrimination Tribunal of Queensland which have dealt with the issue currently under consideration; re; Women’s Legal Service Inc [1996] QADT 21; Lawson v Stadium Redevelopment Authority & Qld Rugby Football League [2003] QADT 12; Dolores Jackson & Ors v Cairns Golf Club [2005] QADT 34 and Haycox v The Uniting Church in Australia Property Trust (Q) trading as the Wesley Hospital [2005] QADT 35. None of those decisions discuss the legislative policy behind the exclusion of not for profit organisations from the operation of the Act. In only one of those, the first, concerning the Women’s Legal Service, was the issue of whether a particular organisation was within the definition actually determined. The rest, whilst discussing the relevant principles, each proceeded in essence to decide that it was not appropriate that the question be determined on a summary basis. 20. Some idea of the policy behind equivalent provisions can be seen from the decision of the New South Wales Administrative Decisions Tribunal in Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176. In that case the relevant provision which provided an exclusion from the operation of the legislation referred to a body that is “carried on otherwise than for profit and which is not established by an Act”. There was no question that the relevant Hospital Contribution Fund was not established by an Act, so the Tribunal conducted an examination of whether it carried on otherwise than for profit. It is to be noted that the provision under consideration there was different to that here in that it was not referenced to the carrying out of purposes for the purpose of making a profit, but rather referenced whether the body itself “carried on” otherwise than for profit. 21. The Tribunal in the decision of Strong v The Hospitals Contribution Fund of -- 6 of 12 -- 7 Australia Ltd identified what it saw as some legislative policy that sought to exclude organisations which have a distinctive characteristic that “a substantial amount of their activities are carried out by people who are unremunerated, and that they operate to meet the special interests of a defined group of people”. At paragraph 89 of its reasons, the Tribunal said: “The heading to section 57 is "Voluntary bodies". As we noted above, in other Australian discrimination legislation a voluntary body is defined as one that that is carried on otherwise than for profit. There is an implication, made stronger by the definitions in other anti-discrimination legislation, that parliament intended by referring to a body whose activities are carried on otherwise than for profit, to refer to a voluntary body. In our experience it is distinctive of voluntary organisations, though not exclusive to them, that a substantial amount of their activities are carried out by people who are unremunerated, and that they operate to meet the special interests of a defined group of people.” 22. Hence it concluded in that case that the entity existed to provide health insurance service to its members, and that to do so it necessarily tried to generate an operating surplus. Even though it was carried on otherwise than for profit for the purposes of income it did not distribute its profits, it operated “for profit” in that sense. It concluded that “whether it has a profit or a loss, and whether it calls a profit and surplus, and a loss and deficit, the question is “what is its character? It asked; does it have “the character of a relatively small voluntary body, the activities of which could be carried on by an unincorporated association of people for purposes of pursuing a common interest?” The exception provided for in [the] section was in their view, directed towards such bodies, and that it is bodies with that character that are identified by the term “carried on otherwise not for profit”. 23. In arriving at that conclusion, the Tribunal, appeared to have placed significance upon a parliamentary speech which suggested that the removal of registered clubs from the exception provided for under the NSW legislation recognised that there was a relief from compliance only for “small private concerns, that have memberships and on which other businesses are not dependent for their viability”. Such a distinction does not exist in the Queensland legislation. 24. Exemptions to similar effect to those in section 46(2)(b) may be found in other legislation; see for example Section 39 of the Sex Discrimination Act (Commonwealth) 1984, Section 36 the Age Discrimination Act 2004 (Commonwealth), Section 31 Discrimination Act 1991 (ACT) and section 71 Equal Opportunity Act 1984 (WA). The exemptions there reference voluntary bodies which are defined as associations or other bodies, the activities of which are not engaged in for the purpose of making a profit. There have been some decisions about whether particular organisations fell within that definition; see for example Kalgoorlie Taxi Car Owner’s Association Inc & Ors v Frank Regan & Ors [1998] WASCA 9; Gardnea v AANA Ltd (2003) EOC 93-277 which concerned the activities of the South Australian Netball Association. 25. The Tribunal in Strong discussed some English authority on the meaning of the expression “otherwise than for profit”. In particular the Tribunal adopted an approach taken from the decision in Customs & Excise Commissioners v Bell -- 7 of 12 -- 8 Concord Educational Trust Ltd [1989] 2 WLR 679 where, at 681 Browne- Wilkinson VC said that if consideration of the phrase “otherwise than for profit”: “requires one to look at the constitution of the organisation to discover the purposes for which it is established, there is a clear and unambiguous test as to whether the supply is made for profit. If the commissioner’s test is correct the consequential difficulties are formidable.” “If the phrase “otherwise than for profit” implies that a charitable organisation can carry on a business for “profit” the question once arises as to what is meant by “profit”. In relation to what period does one assess the profit? How often does one have to ask the question, is the organisation providing its services otherwise than for profit?” “...I find it inconceivable that Parliament should have intended the question of exemption to depend on ascertaining the subjective state of mind of an educational body at (quarterly) intervals. Commonsense suggests the exemption should depend on some longstanding objective yard stick rather than on this frequent review of the state of mind of those running the organisation”. 26. His Honour went on to say [at 683] “In my judgment, parliament is far more likely to have considered that the phrase ‘otherwise than for profit’ meant bodies which were non-profit making bodies in the ordinary sense of the word rather than bodies which, from time to time, aim to make a surplus on revenue account. Administration of the tax for educational purposes becomes so complex on any other view that, apart from any guidance from the directive, I would reject the commissioners’ construction.” 27. In National Deposit Friendly Society Trustees v Skegness Urban District Council [1958] AC 293 at 319, Lord Denning concluded that the fact that a friendly society had made profits did not mean that it was conducted for profit or conducted for the purpose of making profit: “Many charitable bodies, such as colleges and religious foundations, have large funds which they invest in interest in stocks and shares, or purchase land which they let at a profit. Yet they are not established or conducted for profit. The reason is that because their objects are to advance education or religion, as the case may be. The investing of funds is not one of their objects properly so called, but only a means of achieving those objects. So it here seems to me that if the making of profit is not one of the main objects of an organisation, but is only a subsidiary object – that is to say if it is only a means whereby its main objects can be furthered or achieved – then it is not established or conducted for profit.” 28. Applying a similar approach, the Court in Bell Concord concluded that the making of a monetary surplus was incidental to and not an object of the company, and it was therefore not supplying its educational services for profit in the relevant sense. 29. It may be seen that this analysis introduces a distinction between the main objects and the subsidiary objects of an association. That distinction may not be relevant for the purposes of consideration here if the reference to the carrying out of purposes in section 46(2)(b) is a reference to the stated purposes as referenced in the constitution, rather than the notion of a purpose -- 8 of 12 -- 9 as particular activity. Hence under the former analysis, all that is necessary is to consider whether the purposes set out in the constitution of the organisation include as a purpose the making of a profit, not whether in the carrying out of any of those stated purposes, they are carried out for the purpose of making a profit. That enquiry might also therefore be largely limited to an analysis of what is contained in the constitution, rather than an analysis of what actually occurs on a daily, quarterly or annual basis by the relevant entity. 30. This narrow approach was that applied by the then President of the Anti- Discrimination Tribunal in re; Women’s Legal Service [1996] QADT 21 case, where the President primarily had regard to the constitution of the association in arriving at the conclusion that it was established for community service and did not carry out its purposes for the purpose of making a profit. She also had regard to the fact that the Australian Tax Office had granted a taxation exemption because of its status as a benevolent institution. 31. In Jackson & Ors v Cairns Golf Club [2005] QADT 34, Tribunal Member Venables construed that decision as one which applied “indicia...relevant in determining the question of whether an association does or does not carry out its purposes for the purpose of making a profit, but they are not decisive in their own right.” In her reasons at [20] Member Venables said: “The real issue to be determined in this jurisdiction is the motive of the association under consideration. That is to say that the real question is whether the association sets out to make a profit by the carrying out of its purposes. What it is permitted to do with that profit according to the terms of its instrument incorporation, although relevant, is of less significance”. 32. In Haycox v The Uniting Church in Australia Property Trust (Q) trading as the Wesley Hospital [2005] QADT 35 Mr Jackson QC was considering an application like the present for summary dismissal, but decided that there were insufficient facts placed before him to enable him to form a view as to whether the Respondent in fact carried out its purposes for the purpose of making a profit. In arriving at that conclusion he took the view [at 44] that it was necessary in consideration of the wording of section 46(2)(b) to look at the “facts by which the association carries out its purposes, rather than purely towards the associations’ constitutional documents”. He took the view that the constitution of an association did not necessarily limit the factual enquiry involved in answering the question of whether an association carried out its purposes for the purpose of making a profit. He rejected the narrower and thought to be a “more practical” approach of limiting the enquiry to the constitutional documents, which were seemingly the basis for the decision in Bell Concord. In the context of that discussion Member Jackson said: “38. In my opinion, it is clear that the “purposes” referred to in paragraph 46(2)(b) are the purposes for which the association is established. Once that is identified, it is also clear, in my opinion, that the requirement in paragraph (b) looks to the operation of the association in one further respect. The question is whether the respondent carries out its constitutional purposes for the purpose of making a profit. The ordinary meaning of profit in a context like this is pecuniary gain in the form of an excess of revenues or returns over expenses or capital outlaid. However, paragraph (b) does not confine itself to whether an -- 9 of 12 -- 10 association is established as a not for profit association. It is directed to the wider inquiry whether the association carries out the constitutional purposes for the additional purpose of making a profit. 39. It follows, in my opinion, that the question raised by paragraph (b) cannot always be answered simply by having regard to the constitutional purposes of an association. It also may be necessary to have a look at its operation in fact. 40. In the case of an association like the respondent, the question which is raised is whether it carries out its purposes for the purpose of making a profit if, in fact, its operations are profitable and are conducted on that basis. In particular, if the respondent operates the hospital profitably on a year to year operational basis, does that mean that the respondent carries out its purposes for the purpose of making a profit, where any hospital profits are utilised for other non-profit activities or purposes of the respondent or so as to become retained profits to provide for future working capital, capital improvements or other works in the respondent’s existing and planned operations at the hospital. And what is the impact, if any, of the respondent’s other operations? 41. The respondent’s contention is that the constitutional limitations upon the respondent operating as a for-profit organization 1 mean that it is irrelevant to consider whether the hospital in fact operates at a profit on a year to year basis. It relied on Customs and Excise Commissioners v Bell Concord Educational Trust Ltd2 . 42. In my opinion, it does not necessarily follow that if the respondent operates the hospital from year to year or in some years at a profit, that it is carrying out its purposes for the purpose of making a profit. However, I do not consider that the constitutional documents of an association necessarily limit the factual inquiry in answering the question whether the respondent carries out its purposes for the purpose of making a profit under section 46(2). Although that might be a convenient result, I consider that if the only relevant inquiry under paragraph (b) is whether the association was also established for a purpose of not making a profit, the language would be different, having regard to the text of paragraph (a). Paragraph (b) is directed to what is happening, in my view. For example, an association’s constitution might permit it to carry out its purposes for profit or not, but if in fact it does not carry them out for the purpose of making a profit it is entitled to the exemption in section 46(2). 43. Granted, it will be an unusual case where an association whose constitution provides that its operations are to be non-profit, that prohibits the distribution of any dividends to its members and which provides that on winding up its assets are to be applied for religious or charitable purposes will be found to be carrying out its purposes for the purpose of making a profit. That is likely to be so, whether or not its operational policy is to make a profit in supplying the relevant services. 1 For example, see clauses 1.2, 1.3, 35.1 to 35.3, 38.1 and 38.2 of the Uniting HealthCare Constitution, and By-Law 2.2.7 of the By-Laws of the Queensland Synod of the Uniting Church in Australia. 2 (1989) 2 WLR 679 at 682F – 684B. -- 10 of 12 -- 11 44. However, because I consider that paragraph (b) directs itself towards the actual facts by which the association carries out its purposes, rather than purely towards the association’s constitutional documents, in my opinion this is not an appropriate case to exercise the power conferred on the Tribunal under section 215A. Neither the complainant nor the respondent has chosen to place before the Tribunal any facts concerning the respondent’s actual operations of the hospital or its other affairs.” 33. In arriving at the conclusion that he could not decide the matter on the evidence before him, he posed the example of an association which could be established for a number of relevant purposes, yet carry on a purely commercial undertaking for one of those purposes with a view to appropriating a profit from that purpose to another unprofitable purpose. 34. I agree that the relevant enquiry is not one which limits the enquiry solely to the purpose for which an entity is established or to a reference to the purposes set out in the constitution or other rules of the association either as to its purposes, or as to the way in which income derived by the association is dealt with. For example it does not necessarily follow that because there are provisions in a constitution which prevent a distribution of income derived, but which might otherwise thought to be profit in the conventional sense, would cease to be carrying on for the purpose of making a profit simply because it could not be distributed to its members, either during the continuance of the entity, or its winding up. On the other hand there might even be proprietary limited companies which were the managerial bodies for small sporting clubs which were in truth not carrying out their purpose for profit but for the benefit of a particular sport or sporting club. And that would be so, notwithstanding that on dissolution of the entity its members might benefit from a distribution of its assets. It seems to me that apart from the unusual case mentioned by Mr Jackson, where an association’s constitution provides that its operations are to be non-profit and that its assets are to be applied for charitable purposes it will be implicit that it is not carrying out its purposes for the purpose of making a profit. The purposes of an entity in the sense contemplated by section 46(2)(b) are the purposes provided for in its constitution or rules. There is evidence here as to the purposes for which the associations were established in the sense contemplated by section 46(2). So the enquiry is then whether either or both of these entities actually carried out the purposes for which they are established, namely the promotion of basketball, and carried out those purposes other than for the purpose of making a profit. It seems to me to be unlikely that the legislature intended the exclusion to depend upon whether a body established for sporting purposes which operated with a view to there being an annual surplus or “profit” from the conduct of its activities, would be caught by the prohibitions upon unfair discrimination but those which were conducted so as to either break even or operated at a loss on an annual basis would not. To do so would be to encourage such organisations to conduct their affairs either in a state of insolvency or in circumstances in which they would be discouraged from operating “profitably”, i.e. at a surplus over expenses so as to be able to best promote the sporting purposes for which they were established. 35. The constitutions in this case, do not expressly provide that the operations of these organisations are not for profit, but the purposes for which their -- 11 of 12 -- 12 constitutions do provide makes clear that that is not the purpose of which they were established. There is no evidence that to the extent that they derived income or revenue from the activities they carried on, that they did so for the purpose of making a profit, rather than to derive that revenue to apply it to the sporting purposes for which they were established. 36. On this basis it would be a rare case indeed where one would need to consider the individual motivations of any of the managers of these organisations or examine its particular revenue activities in any given year or part year. That is because it would be difficult to imagine a situation factually, where an organisation like those under consideration could carry out its purposes for the purpose of making a profit and still be carrying out the sporting or cultural purposes for which they were essentially established. There is no suggestion that either association is carrying on a purely commercial undertaking in the sense referenced in the example mentioned in the decision in the Uniting Church case. In my opinion the fact that both organisations derive revenue, whether or not it leads to a profit, or a deficit in any given year, is not determinative of the question. The fact that such surpluses as are achieved are carried forward as accumulated assets, or that those surplus funds in turn derive income by way of interest does not mean that they are carrying on their purposes for the purpose of making a profit, or are clubs which carry out their purpose for the purpose of making a profit. In the circumstances I rule that the Respondents are not “clubs” within the meaning of that term in the Act, and are entitled to the exemption identified in s.46(2) of the Act. -- 12 of 12 --