UNE CON LAW LAW 399 2021 Topic FIVE Part One Taxation Power Topics Outline (4) (4) (2) (5).docx PDF version PDF

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UNIVERSITY OF NEW ENGLAND SCHOOL OF LAW LAW 399: CONSTITUTIONAL LAW 2021

TOPIC FIVE (5) (Part One) THE TAXATION POWER

Section 51 (ii) Commonwealth Constitution: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to TAXATION; but so as not to discriminate between States or parts of States

Section 90 Commonwealth Constitution: On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and excise, and to grant bounties on the production or export of goods, shall become exclusive Section 99 Commonwealth Constitution : The Commonwealth shall not, by any law or regulation of trade, commerce or revenue, give preference to one State or any part thereof over another State or any part thereof Section 53 Commonwealth Constitution : Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate… The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of government The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people

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Section 55 Commonwealth Constitution: Laws imposing taxation shall deal only with the imposition of taxation and any provision therein dealing with any other matter shall be of no effect Laws imposing taxation, except laws imposing duties of customs and excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only

Required reading

Cases and materials as listed below

Read the Powerpoint Slides for Topic Five, Part One – The Taxation Power – the slides follow the order of this Topics Outline Listen to the lectures and podcast tutorial on Topic Five The Finance Powers ……………………………………………………………………………………………… . Joseph and Castan Federal Constitutional Law A Contemporary View 5th Edition JC 350355 . Blackshield and Williams Australian Constitutional Law and Theory 7thh Edition BW 1087-1105 ………………………………………………………………………………………………….. OTHER READING: . Hanks, Gordon and Hill Constitutional Law in Australia 4th Edition, 335-362 . Keyzer Principles of Australian Constitutional Law 5th Edition, 159-186

............................................................................................................................. . Issues arising from the above sections of the Commonwealth Constitution (including why following litigation has appeared before High Court of Australia) . Parliamentary practice on drafting taxation legislation . How taxation power can be used: . To raise revenue . As instrument of economic and social control – to achieve objects outside of the textual provisions of Commonwealth constitutional power (for example, the

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Commonwealth may be able to use the taxation power to achieve indirectly what it cannot achieve directly)

. WHAT is NOT a TAX – seven categories: . Charge for acquisition or use of property . Fee for a privilege . Penalty for criminal conduct or breach of statutory obligation . Fee for service . Arbitrary exaction . Incontestable impost . Internal Financial Arrangements of Government

WHAT IS A TAX? (Definitions, Expansions of Definitions and Relaxations of Definitions) Matthews v Chicory Marketing Board (1938) 60 CLR 263 BW 1088 Air Caledonie v Commonwealth (1988) 165 CLR 462 BW 1089 Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 BW 1090 Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 BW 1092 Luton v Lessels (2002) 210 CLR 333 BW 1093 Roy Morgan Research Limited v Federal Commissioner of Taxation (2011) 244 CLR 97 BW 1095 Queanbeyan City Council v Actew Corporation Ltd (2011) 281 ALR 671 Refer: Case Base: 

FirstPoint



CaseBase

Austlii: http://www.austlii.edu.au/au/cases/cth/HCA/

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. FEE FOR SERVICE Air Caledonie international v Commonwealth (1988) 165 CLR 462 BW 1096 Airservices Australia v Canadian Airlines International Limited (1999) 202 CLR 133 BW 1098 . ARBITRARY EXACTION and INCONTESTABLE IMPOST MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 BW 1100 Deputy Federal Commissioner of Taxation v Truhold Benefit Pty Ltd (1988) 158 CLR 678 BW 1101 Austin v Commonwealth (2003) 215 CLR 185 BW 1102

. INCIDENTAL ASPECT of TAX POWER Pape v Commissioner of Taxation (2009) 238 CLR 1 BW 1102...