CONTENTS
Background
Excise and Customs Duties
Commonwealth power to impose taxes before
legislation passed in Parliament
Convention and current practice
The short answer
Detailed consideration
The search for the authority -
Customs and Excise Duty
An assessment
Other sources of authority
The doctrine of the 'implied national power'
Convention and 'those sections'
Unresolved policy questions
Legislative reform
Footnotes
Background
A key element in the 1993-94 Federal Budget is the proposal to raise revenue through a staged increase in the price of petroleum products.
The Government announced that it would increase the rate of duty on tax payable under its Budget proposals as being 'effective from midnight tonight' 1 , that is, Budget night. As has been common practice for some years with legislation dealing with the imposition of various forms of taxation, some proposed increased rates of tax have come into effect before being formally authorised by both Houses of Parliament.
This paper examines this practice which has much in common with what is sometimes referred to as legislation by press release.
The paper also analyses the legal implications of the Government being unable to secure passage of legislation retrospectively authorising the collection of revenue from Budget Night.
Proposed increases in customs and excise duties on petroleum products are canvassed principally to illustrate the legal and administrative difficulties that may arise where no legal authority to levy a tax exists and the passage of validating laws is called into question. 2
Lastly, the paper speculates on possible means of harmonising what in some instances are the competing objectives of:
protecting the revenue from avoidance schemes that take advantage of any interval between the announcing of tax increases and the passage of the legislation; and
the fundamental principle that only Parliament may authorise the raising of taxes.
Excise and Customs Duties
On 17 August 1993, Mr. A.E. Lindsay MP, moved the Excise Tariff (Deficit Reduction) Proposal (1993) and the Customs Tariff (Deficit Reduction) Proposal (1993), which were tabled in the House of Representatives. 3 The debate on the unresolved motion was adjourned. 4
The Government then introduced the Excise Tariff (Deficit Reduction) Bill (the 'ET(DR) Bill') into the House of Representatives. The purpose of this Bill is to increase the excise duty payable on imported tobacco and tobacco products and certain petroleum products. The schedule to the Bill contains the proposed amendments to the Principal Act, the Excise Tariff Act 1921.
Immediately following, the Customs Tariff (Deficit Reduction) Bill 1993 (the 'CT(DR) Bill') was introduced into the House of Representatives to increase the customs duty payable on tobacco and tobacco products and certain petroleum products, by amending the Customs Tariff Act 1987 . The ET(DR) Bill and the CT(DR) Bill would, if enacted in their present form, give legislative effect to the relevant matters contained in the Proposals.
These four measures jointly provide for increases in petrol taxes on both imported and locally refined petroleum products. 5
For the purposes of this paper, the form adopted, two Proposals and two Bills, comprises the relevant part of the Parliamentary procedural scheme whereby proposed taxation measures are introduced. The House of Representatives Standing Order 291 allows a Minister to bring in a proposal or bill dealing with taxation without any prior notice. The purpose of the procedure is to 'protect the revenue which could be endangered if notice were given of the introduction of certain legislation in these categories'. 6 At an appropriate time, the Proposals must be regularised in legislative form, by the introduction of the relevant Bills. 7 In the present case, the CT(DR) and ET(DR) bills were introduced immediately following the tabling of the relevant Proposals.
Thus, on the morning after the Bills and related Proposals were tabled in the House of Representatives, the nation awoke to an immediate increase in, amongst other things, the price of petrol, by 3 cents a litre.
From that time, oil companies also began making an additional payment of 3 cents per litre excise for shipments of petrol made on or after 18 August 1993, in accordance with industry arrangements for weekly settlements with the Australian Customs Service.
As neither House has yet passed either amending Bill or agreed to either Deficit Reduction Proposal, the price of petrol would appear to have been raised without legal authority and only in anticipation of the proposed fiscal alterations being passed by the Parliament. The issue of the taxes being demanded prior to the passage of the validating legislation is brought sharply into focus by the current potential for delay, rejection or amendment of the Budget Bills. This is due in part to the current composition of the Senate. 8
Three weeks after the Budget was brought down, the Government is unable to guarantee the passage of the Budget Bills through the Senate. The conditions are ripe for the Government's proposed increases to customs and excise duties to be either rejected or the subject of future amendment. Either case may involve a substantial delay.
Commonwealth power to impose taxes before
legislation passed in Parliament
The issues raised here are quite fundamental and by no means confined to what some might see as transient concerns about the petrol prices and the 1993-94 Budget in general.
The concept of parliamentary supremacy which emerged in seventeenth century Britain owes much to the conflict between the legislative and executive arms of government over Parliament's claim to the exclusive power to raise taxes. 9 It is therefore not surprising that contemporary parliaments and their supporters are unlikely to concede that this right should be readily sacrificed on the alter of governmental expediency. 10
The central question addressed here is therefore not the economic and social consequences of the proposed changes in excise but whether the Commonwealth Government has the power to require payment of increased rates of tax, excise and customs duties prior to those increases being agreed to by the Parliament?
Convention and current practice
The present controversy surrounding the ET(DR) Bill, the CT(DR) Bill and the Deficit Reduction Proposals should not be removed from its proper context which lies within the following parameters:
(1)It has become common practice for governments to collect taxes in anticipation of the proposed fiscal alterations subsequently being passed into law. It is arguable that this practice has attained the status of a 'convention', having been followed by both Labor and Non Labor governments. 11
(2) Concerns over the authority of the Commonwealth Government are also relevant to other proposed fiscal measures, such as sales tax and the general debate about 'legislating by press release'. 12
(These issues, in so far as they apply to the collection of sales tax, are to be dealt with in a separate paper being prepared by the Parliamentary Research Service. 13 )
(3)Similar issues have arisen in other Commonwealth countries. 14
(4)The policies behind the collection of taxes at the increased rates as proposed in Parliament, (as distinct from 'passed' in Parliament) can be summarised as follows:
If the increases are passed, the practice of 'collect now, legislate later' may ultimately be fairer to the consumer. This will particularly be so where demand for goods is 'lumpy' as in cases of small to medium businesses which intermittently purchase substantial quantities of dutiable items. 15
It is preferable from the Government's viewpoint, to collect the sums involved from 18 August 1993 because:
1. The Government then has the use of the money.
2. From a debt collection perspective, it is preferable to restrict the occasions on which tax has to be collected retrospectively. Hence, oil companies commenced paying the extra 3 cents per litre as from 18 August 1993.
The collection of taxes at the increased rates may compliment the scheme set out in the Customs Act 1901, ss. 226 and 273E. These sections are designed to overcome specific tax avoidance schemes dependent on the speculative stockpiling of goods at the lower rate of tax, only to sell them later at higher prices.
The short answer
Whether the Executive can impose a binding obligation to pay taxation without the passage through both Houses of valid legislation may be answered as follows:
The Executive does not have the requisite authority to require the payment of taxes which have not been passed into law.
Where the taxes are paid although not lawfully required to be paid, such payment, at best, rests upon convention which is not legally enforceable.
Legal and administrative problems will arise where money is collected without legislative authority and, for one reason or another, the proposed (validating) legislation is either not passed or not passed in the form originally announced.
A standing provision contained in principal enactments conferring formal authority on the Executive to collect, and to require the payment of, duties at the rates proposed in Parliament and prior to the passage of the validating legislation is one way of overcoming some of the above problems. There are others, including explicit legislative and constitutional limitations on certain forms of executive action. 16
These issues clearly merit further consideration. There is no escaping the fact that the current arrangements have been, and are increasingly likely to be, called into question by commentators and interested parties. 17
Under the system of proportional representation applying in the Senate, it is the rule rather than the exception for the government of the day not to command a working majority in the Upper House. Consequently, the Senate will, for the foreseeable future, be able to exert considerable influence over the form and content of all legislation including taxation measures. In these circumstances, for certainty in financial dealings and in the collection and safeguarding of the revenue, it would seem prudent to ensure that the introduction of new measures dealing with the imposition of taxation are, from the date they are to take effect, supported by valid authority. (The absence of such authority is also relevant where the Government changes its mind regarding the increases to taxes which have been proposed in Parliament but are not supported by legislative action.)
The implication to be drawn from these matters is that the demand for payment of taxes not supported by lawful authority may be open to challenge. Such a challenge may have far reaching ramifications. Not only might such a challenge be mounted by the oil companies, but also by the consumers who are compelled, by the oil companies, to pay the increased prices. Whilst it is not the purpose of this paper to examine the possible success or otherwise of such actions, the potential for these actions to arise should be given serious consideration.
Detailed consideration
The search for the authority -
Customs and Excise Duty
Presently, there is no express legal authority for the Commonwealth to require the payment of customs and excise duties at the proposed increased rate prior to such increases becoming law. This of itself, does not mean that no authority exists.
This leaves open, however, the possibility of an implied authority residing in any provisions in the relevant legislation. The official view seems to be that the requisite authority can be derived by necessary implication from the following provisions:
Customs Act 1901, sections 226 and 273EA;
Excise Act 1901, sections 114 and 160B.
The two sets of provisions are nearly identical. The first part of the legislative scheme from which it is argued that the authority is implied, is provided by s. 273EA of the Customs Act 1901:
273EA. (1) The Minister may, at any time when the Parliament is prorogued or the House of Representatives has expired by effluxion of time, has been dissolved or is adjourned otherwise than for a period not exceeding 7 days, publish in the Gazette a notice that it is intended, within 7 sitting days of the House of Representatives after the date of the publication of the notice to propose in the Parliament a Customs Tariff or Customs Tariff alteration in accordance with particulars specified in the notice and operating as from such time as is specified in the notice, not being:
(a) in the case of a Customs Tariff or Customs Tariff alteration that could have the effect of making the duty payable by any person importing goods greater than the duty that would, but for that Customs Tariff or Customs Tariff alteration, be payable - a time earlier than the time of publication of the notice;or
(b) in any other case - a time earlier than 6 months before the time of publication of the notice.
(2) Where notice of intention to propose a Customs Tariff or a Customs Tariff alteration has been published in accordance with this section, the Customs Tariff or Customs Tariff alteration shall, for the purposes of this Act (other than section 226) and any other Act, be deemed to be a Customs Tariff or Customs Tariff alteration, as the case may be, proposed in the Parliament.
With respect to s.273EA, it might be argued that the provision allowing the notification of customs tariff proposals whilst the House of Representatives is not sitting, may be construed as implying that the same result can be achieved when the House is sitting. However, this interpretation is not altogether convincing. The argument which appears to carry more weight is that the legislature intended that whilst Parliament is sitting, changes must be made in the usual way, that is, by the normal passage of legislation.
As to the procedures in s.273EA, it has been said:
The above statutes have therefore expressed part of the Tariff making procedure. But they have left unexpressed in Statute law the practice of levying charges upon the people on the authority of an unresolved motion of a Minister of the Crown in the House of Representatives. 18
A further argument in support of the existence of an implied authority is that the authority prescribed in paragraph 273EA(1)(b) is very extensive. The width of the power, for example, is illustrated by the fact that the Minister may, by notifying a proposed new customs tariff (as distinct from an increase to an existing tariff) in the Commonwealth Gazette, specify that the new tariff is retrospective. 19
This is an extensive authority, and it follows that it constitutes a recognition by the legislature that the protection of the revenue base may necessitate the use of extraordinary emergency measures, which might be described as 'implied national power'. 20
The contrary view, however, is that s.273EA, far from giving any such open ended recognition to the need to protect the revenue, merely confers specific and limited powers on the Executive Government.
By this reasoning, if the legislature intended to give authority to the Executive to authorise (without parliamentary approval) increases in customs and excise duties when the Parliament is sitting, the legislature could have done so. However, the Parliament has not so provided, thereby confining the power in question to those times when the House is not sitting. Accordingly, as a matter of construction, the argument in support of the implication of such authority fails.
It is further argued that ss.273EA(2) is of some significance in determining the width of the Executive's power to act without parliamentary approval. Subsection 273EA(2) provides that a notification in the Gazette fulfilling the requirements set out in s.273EA(1) will be 'deemed to be a Customs Tariff or Customs Tariff alteration, as the case may be, proposed in the Parliament'. This provision adds weight to the view that the Parliament intended that the tariffs and alterations must be validated by legislation.
Section 226 of the Customs Act 1901 may also provide some support for the view that the Executive possesses the requisite authority for the collection of taxes prior to the passage of the validating legislation. That section states:
226. (1) No proceeding whether against an officer or otherwise for anything done for the protection of the revenue in relation to any Customs Tariff or Customs Tariff alteration proposed in the Parliament shall except as mentioned in the next section be commenced before the close of the session in which such Tariff or Tariff alteration is proposed or before the expiration of 12 months after such Tariff or Tariff alteration is proposed, whichever first happens.
(2) No proceeding, whether against an officer or otherwise, for anything done for the protection of the revenue in relation to a Customs Tariff or Customs Tariff alteration that is intended to be proposed in accordance with a notice under section 273EA shall, except as provided in the next succeeding section be commenced before:
(a) the seventh sitting day of the House of Representatives after the date of publication of the notice, or the day on which the period of 6 months from the date of publication of the notice expires, whichever is the earlier day; or
(b) where, on or before the earlier of the days referred to in the last preceding paragraph, a Customs Tariff or Customs Tariff alteration that would validate the thing so done is proposed in the Parliament - the close of the session in which the Customs Tariff or Customs Tariff alteration is so proposed, or the expiration of 12 months after the Customs Tariff or Customs Tariff alteration is so proposed, whichever first happens.
It may be that if the legislature has expressly restricted the commencement of actions against an officer for an act done in connection with the protection of revenue in relation to proposed customs tariff alterations, then it may be inferred that the Commonwealth can collect that revenue under the proposals. Further, it may be argued that s.226 not only restricts proceedings in relation to actions taken under proposals gazetted in accordance with s. 273EA but also actions under alterations 'proposed in Parliament'. If acceptable, this reasoning would imply a recognition by the legislature that revenue is collected under such alterations as proposed in the Parliament as distinct from passed by the Parliament.
Once again, however, there is a counter argument with at least equal appeal. This argument hinges on the relevant provisions in the Customs Act 1901 and the Excise Act 1901 which explicitly address two relevant issues:
The first is the enactment of a scheme devised to allow certain things to happen when the House of Representatives is not sitting, ie. when it has been 'prorogued or the House of Representatives has expired by effluxion of time, has been dissolved or is adjourned otherwise than for a period not exceeding 7 days ...'.
A second is the restriction of the commencement of proceedings against customs officers for anything done for the protection of revenue pursuant to proposals in Parliament and notifications under s.273EA for the imposition of customs tariffs and tariff alterations. 21
An assessment
Can it be implied from the legislative scheme set out in these sections that the legislature intended that the Commonwealth Government would have authority to collect and retain monies under proposals introduced into Parliament? The nature of the scheme implies that the collection, or the demand for payment, of monies pursuant to either the tariffs or the tariff alterations proposed in Parliament or notified in the Gazette is without lawful authority.
This implication can be drawn because:
the bringing of proceedings against customs officers in respect of the collection of such monies is restricted to a certain period. Beyond that time, proceedings may be commenced. If the validating legislation has not been passed then clearly the tax is without a lawful basis.
the relevant provisions are designed to prevent proceedings being brought upon grounds which, if the legislation is passed, would no longer exist. Hence, the provisions may save the taxpayers and the Government from being put to unnecessary expense.
the very need to legislate to restrict proceedings suggests that the demand for the collection of taxes under an unresolved motion in the House of Representatives is, prior to the validating legislation, without lawful authority.
The contrary proposition, that is, that the legislative scheme provides the authority, is not supported by the Second Reading Speech to the Excise Bill 1974 which inserted s.160B into the Excise Act 1901 (the sister provision of s.273 of the Customs Act 1901). 22 In that Speech there is no suggestion that the intention of the legislature was to either expressly or impliedly confer authority on the Commonwealth Government to collect and retain excise duties prior to the passage of the legislation. Rather, the intention of the Government as endorsed by the legislature, as revealed in the Second Reading Speech, was to overcome a method of tax avoidance. The Government had identified pre-budget speculative practices which involved the stockpiling of goods which could reasonably be expected to attract the imposition of higher duties as part of the Government's Budget strategy. As goods were stockpiled prior to the Budget, the duty increases were introduced to prevent excessive profits being realised by selling the stockpiled goods at the higher prices. Referring to the proposed amendments the Hon. Dr. Cairns said:
these two measures will go a long way to curtailing speculative pre-budget practices and the subsequent temptation to exploit the consumer. 23
On balance, it appears that the provisions of the Customs Act 1901 and the Excise Act 1901 do not confer any authority, express or otherwise, on the Commonwealth to require the payment of increased excise and customs duties prior to the enactment of the relevant legislation.
Other sources of authority
It is, of course, possible that the machinery for collecting customs and excise duties discussed above is supported by either implied constitutional authority or by convention.
The doctrine of the 'implied national power'
Consideration of this 'power' gives rise to a number of questions including:
Does the doctrine of the implied national power provide the necessary authority for the Executive to require the payment of taxes which have not as yet been passed by Parliament?
Can that doctrine assist in the extraction of the necessary authority from the legislative scheme set out in the Customs Act 1901 and the Excise Act 1901?
Zines refers to statements by several members of the High Court in relation to 'the existence of an inherent legislative and executive power derived from the national status of the Commonwealth'. 24 Zines concludes, however, that the extent of this power is uncertain - as are the activities to which it is likely to be applied. Indeed it would seem that such a doctrine would not be applied to the matters over which the Commonwealth has express legislative power, such as taxation. Furthermore, the then Chief Justice of the High Court, Sir Garfield Barwick, stated:
The national nature of the subject matter, the national economy, cannot bring it as a subject matter within Commonwealth power. 25
According to Barwick, as far as the national economy is concerned, 'the Commonwealth was confined to exercising control through its express powers such as taxation, banking and the budget'. 26
After an examination of the evidence and the argument, on balance, it appears that the doctrine of implied national power is not appropriate to the subject matter herein. 27
Convention and 'those sections'
The collection of the proposed rate of duty on petrol and tobacco commences as of the day following the introduction of the Bills into the House of Representatives. The official view seems to be that s.273EA of the Customs Act 1901 and s.160B of the Excise Act 1901 each provide a mechanism enabling the collection of the proposed rate of duty so long as the conditions outlined in those sections are fulfilled, that is, that the fiscal alteration proposal is enacted by the Parliament within twelve months by the tabling of the proposal in the House of Representatives or before the close of the session of Parliament. 28
Indeed, collection does occur and the administrative arrangements under which this happens have not been seriously challenged. It might then be argued that the authority for the collection of the higher rates of duty rests on convention. In this regard, it has been stated that:
The moving of a customs tariff (or excise tariff) is normally treated as a formal procedure for the purpose of initiating the collection of the duty. It may be debated and an amendment may be moved, although the amendment cannot have the effect of increasing or extending the incidence of the charge defined in the proposal unless the charge so increased or the incidence of the charge so extended does not exceed that already contained in an existing act. It is usual for the debate to be adjourned by an opposition Member and for all tariff proposals to be listed together on the Notice Paper under the one order of the day. Debate may be resumed on a later day but this is a rare occurrence. Collection of duties is commenced on the authority of an unresolved motion, and this has been accepted as a convention. 29
(Emphasis added).
Although the text then recites the effect of the provisions in the Customs Act 1901 and the Excise Act 1901, the mere act of recitation does not extend to extracting from those provisions any implied authority conferred upon the Commonwealth to require the payment of taxes under proposed fiscal alterations. As to the rest of the procedure for the introduction of the duties, the text continues:
In order for the proposal to be regularised in legislative form, a customs tariff amendment bill or an excise tariff amendment bill, as the case may be, is introduced which usually consolidates most of the outstanding proposals introduced into the House and is retrospective in operation, in respect of each proposal, to the date on which collection commenced. 30
The 'convention' has also been acknowledged by the Senate Standing Committee for the Scrutiny of Bills. In relation to the Excise Tariff Amendment Bill 1986 it was noted:
The Committee recognises the convention that changes to items of a Custom Tariff and an Excise Tariff are made by way of changes introduced into the House of Representatives and that retrospective legislation implementing a number of such changes is subsequently introduced into the Parliament making the changes with effect from the day after the relevant proposals were tabled. 31 (Emphasis added).
It would seem then that the Commonwealth Government has the authority to increase rates of customs and excise duties but that the Executive does not have the legal authority to insist on payment of the new 'higher' rates until validating legislation is enacted. The only support for the requirement of such payments rests on the principle of 'convention'. 32
Unresolved policy questions
If the claim is made that the existing practice rests on convention other issues are thrown open. For example:
In what circumstances does common practice attain the status of a 'convention'?
Does 'convention' confer the necessary authority? Are taxpayers, in fact, making voluntary payments, or, as in the case of the proposed increases in petrol taxes, are consumers being forced to pay the increase because those paying customs duty to the Australian Customs Service (the ACS), the petrol producers, are making a voluntary payment prior to being legally obliged to do so?
Is it open to those liable for the payment of that tax to defer payment, or do the administrative procedures of the Australian Custom Service (ACS) for the collection of taxes under proposed fiscal alterations prevent the deferral of such a payment? Can the ACS, for example, withhold goods from those who were not prepared to pay the increased amounts of customs and excise duties? If so, under what legal authority could the ACS take such action?
Can consumers refuse to pay the increases? Who would be entitled to a refund were the Senate to block the passage of the legislation validating the increases or in the event of the increases being modified by the Government?
Will petrol producers make a 'windfall gain' if the increases are not proceeded with and it proves to be impossible or impractical for business users and consumers to be refunded for what may, in effect, be voluntary overpayments to the oil companies?
Legislative reform
Does the Commonwealth Government require authority for the collection of taxes under proposed fiscal alterations? Whether ultimately the Government must have express (or implied) authority for the collection of such monies as a legal requirement is unclear. It is unclear because it can be argued that the taxes are paid, by and large, as voluntary payments by petroleum producers in anticipation of the increases being enacted and thereby validated by legislation.
What is clear, however, is that it would be preferable for there to be express authority directing the collection of revenue under proposed changes to the customs and excise rates.
Such a standing or express authority may usefully reduce uncertainty in circumstances where, as is presently the case, the Government cannot guarantee that it will ultimately be able to implement the proposals it announced on Budget Night.
Such a change might also clarify the rights of the refiners, business and consumers. It would contribute to a more transparent process in which the actions of the respective parties are open to public view.
The revenue, business users and consumers of petroleum should also not contribute unwittingly to any windfall to the oil companies made possible by the collection of a 'tax' which is not expressly authorised by statute or otherwise.
One way to provide such protection would be to pass regulations obliging the oil companies to pass on the value of the refund to consumers by reducing the price of petrol to consumers for a given period. 33
The author does not suggest that by expressly providing authority for the Commonwealth to collect such revenue, the consumer could be refunded. Nonetheless, it might lend some comfort to consumers to at least be able to identify the power of the Commonwealth Government to require the payment of monies not lawfully required to be paid and is in accord with fundamental principles of responsible government.
It has been argued that legislation is the preferred option for reform. Castles and Reid concluded:
It is suggested that the doubt which surrounds the present practice adopted by the Commonwealth Parliament should be cleared up by legislation along the lines of the United Kingdom's Provisional Collection of Taxes Act. It is possible, because of s.55 of the Constitution, that more than one statute might be necessary to cover the various "subjects" of taxation. But the statute or statutes which legalize the present procedure should contain the proscriptions contained in the English Act to provide for the adequate protection of the subject and to remove what is now an inroad on the taxing powers of the Commonwealth Parliament. 34
Obviously, the Australian legislature need not follow the path of the United Kingdom in drafting legislation to confer the requisite provisional authority. But what may be learned from the United Kingdom experience is that there is authority to support the proposition that the present procedures are inadequate and could be
reformed by legislation.
Footnotes
1 Australia. House of Representatives. Daily Hansard, 17 August 1993: 66; per A.E. Lindsay MP.
2 Similar issues will arise where (for example) taxes have been collected at the rate contained in unenacted proposals and the Government subsequently decide not to levy the tax at the rate originally announced. This problem would arise if the Parliament were to agree to (say) an increase of only 2 cents (instead of 3 cents) a litre in petrol tax as of 18 August 1993.
3 Australia. House of Representatives. Daily Hansard, 17 August 1993: 65, per A.E.Lindsay MP.
4 Australia. House of Representatives. Daily Hansard, 17 August 1993: 66 per Bruce Scott MP.
5 Clause 2 of each Bill provides that the proposals are to be effective as from 18 August 1993. However, like the Bills themselves, these clauses are not legally binding until the Bills have passed into law. In more general terms, even where a retrospective commencement date is provided for in proposed legislation, that commencement date has no legal status until the legislation of which it forms a part is properly enacted.
6 House of Representatives. A Short Description of Business and Procedures, (9th edition, AGPS, 1991:32.
7 Browning, A.R. House of Representatives Practice, AGPS, 1989: 419.
8 The constitution of the Senate is Government: 30, Opposition: 36, Democrats: 7, Greens: 2, Independents: 1.
8. In the context of the historical importance of this issue see the Bill of Rights (1689) (sometimes cited as the Bill of Rights (1688)): 'That levying Money for or to the Use of the Crowne by pretence of Prerogative without Grant of Parlyament for longer time or in other manner then the same is or shall be granted is Illegal'.
10 See Constitution Act 1986 (New Zealand), s.22.
11 Browning, A.R. (ed) House of Representatives Practice, AGPS, 1989: 418.
12 For example, a Government media release of 4 February 1985 announced that business fringe benefits from that date would be included in the recipient's assessable income. The media release was an attempt to overcome a Federal Court decision in Cooke and Sherden [80 ATC 4140].
13 Bailey, B. Sales Tax and Refunds: The Mutual Pools Case, Parliamentary Research Service, (forthcoming) September, 1993.
14 In Fitzgerald v. Muldoon [1976] N.Z.L.R. 61, the plaintiff challenged the legality of the Prime Minister's statement announcing a suspension of the State Superannuation Scheme pending the passage of the requisite legislation needed to repeal the legislation under which the Scheme existed. The (NZ) Supreme Court held that the suspension amounted to a breach of s.1 of the Bill of Rights (1688) and that there was no authority for the suspension of the Scheme prior to the validating legislation.
15 It may promote transparent pricing of petroleum products if the date of the relevant price increase to consumers and business users coincides with the date on which the increased taxes are announced.
16 As discussed below, the current provisions already contain the seeds of the standing or formal authority approach.
17 The Constitution Act 1986 (New Zealand), s.22 states as follows: It shall not be lawful for the Crown, except by or under an Act of Parliament, - (a) To levy a tax; or (b) To raise a loan or to receive any money as a loan from any person; or (c) To spend any public money'.
18 Castles, A.C. and Reid, G.S. Taxation by Parliamentary Resolution - A Case for an Australian Provisional Collection of Taxes Act,(1961) 35 ALJ 74 at p.80.
19 The period of retrospective effect may not, however, exceed six months.
20 See Zines, L. The High Court and the Constitution, Butterworths, 1981: 234-238, for a discussion of the power referred to by Zines as the 'implied national power' (at p.236). For the reasons set out below, the doctrine of the 'implied national power' is not appropriate to the subject matter of this issue.
21 Browning, A.R.(ed) The House of Representatives Practice, AGPS, 1989: 418 - 419.
22 The Second Reading Speech may be examined to determine the intention of the legislature; ie. it would, by virtue of s.15AB of the Acts Interpretation Act, 1901 be available if the matter were to be judicially considered.
23 Australia. House of Representatives. Debates, 16 July 1974: 216.
24 Zines, L. The High Court and the Constitution, Butterworths, 1981: 235-236. Victoria v. Commonwealth (The Australian Assistance Plan case) (1975) 134 CLR 338. See for example, Mason J. at 397, and Gibbs J. at 375.
25 Victoria v. Commonwealth (The Australian Assistance Plan case) (1975) 134 CLR 338 at 362.
26 Zines, L. The High Court and the Constitution, Butterworths, 1981: 236 - 237.
27 See also Davis v. Commonwealth (1988) 166 C.L.R. 79.
28 The definitions of 'customs tariff' and 'excise duty' in the Customs Act 1901 and the Excise Act 1901 respectively must be read in conjunction with the Acts Interpretation Act 1901, s.38(1): ' "Customs Tariff" means an Act imposing duties of customs, and includes such an Act that has not come into operation', according to the Customs Act 1901. However, s.38(1) of the Acts Interpretation Act 1901 states that 'An Act passed by the Parliament of the Commonwealth may be referred to by the word "Act" alone'. Clearly, the term 'Customs Tariff' cannot be read as meaning a Bill, a Proposal, or a notice gazetted under s.273EA of the Customs Act 1901.
29 Browning, A.R. House of Representatives Practice, AGPS, 1989: 418.
30 Browning, A.R. House of Representatives Practice, AGPS, 1989: 419.
31 Australia. Parliament, Senate Standing Committee for the Scrutiny of Bills, Report, 1986, Seventh Report of 1986, 7 May 1986: 78.
32 See Browning, A.R. House of Representatives Practice, AGPS, 1989: 408 - 409, for a discussion regarding the previous financial procedures for the House of Representatives and the role of the former Ways and Means Committee, which was abolished in 1963. See also: Castles, A.C. and Reid, G.S. Taxation by Parliamentary Resolution - A Case for an Australian Provisional Collection of Taxes Act, (1961) 35 ALJ 80 for a discussion of all the relevant authorities on this point prior to 1961.
33 This is clearly a second best solution as any system of refunding overpayments will incur significant administrative costs and not properly address all equity issues arising out of differential purchasing patterns over time amongst consumers.
34 Castles, A.C. and Reid, G.S. Taxation by Parliamentary Resolution - A Case for an Australian Provisional Collection of Taxes Act, (1961) 35 ALJ 80.
Acknowledgment
The writer wishes to acknowledge the assistance of John Passant and Peter Bayne of the Faculty of Law, Australian National University, in the preparation of this paper.
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