The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
The Forum - On Line Opinion's article discussion area



Syndicate
RSS/XML


RSS 2.0

Main Articles General

Sign In      Register

The Forum > Article Comments > What if GST and payroll tax are unconstitutional? > Comments

What if GST and payroll tax are unconstitutional? : Comments

By Gavin Putland, published 16/12/2009

The Rudd Government doesn't want to touch the GST but it may have no choice.

  1. Pages:
  2. 1
  3. All
Its an interesting opening gambit but not one I am sure I can completely agree with.
Firstly s. 82 needs to be read in its context. It is immediately preceeded by a section creating the CRF and makes the CRF available to be appropriated to the uses of the Commonwealth. In that context is s. 82 intended to be read restrictively or permissively? Does it limit the Commonwealth's power to legislate for taxation(as specifically provided for in s 51(ii)) and/or trading corps (s. 51(xx)) so that it cannot impose a cost if it relates to collection of funds for the CRF?
That would place a pretty restrictive view on the section and on the powers in s. 51.
It would also sit uneasily with s. 83 which limits expenditure to that appropriated by law. With this limited view you would be stuck indefinitely in a situation in which the Commonwealth would be obliged to reimburse businesses for revenue collection costs but could not do so unless the appropriate appropriation was passed by parliament.
I suggest a close reading of the Pharmaceutical Benefits Case.
Posted by J S Mill, Friday, 18 December 2009 4:36:59 PM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
Dear "J S Mill" (now that I'm back in town),

If "Pharmaceutical Benefits Case" refers to British Medical Association v. Commonwealth (http://www.austlii.edu.au/au/cases/cth/high_ct/79clr201.html), I submit that in the present context it is immaterial whether the "purposes of the Commonwealth" (s.81) are restricted to purposes mentioned in the Constitution, because collection costs are indeed mentioned (s.82). The issue is whether those collection costs include costs incurred by private entities.

If "Treasury" in s.83 means the same as "Consolidated Revenue Fund" (CRF), then s.83 requires appropriations from the CRF to be authorized by law, and s.82 is a law authorizing appropriations to cover collection costs (just as ss. 3 and 66 are laws authorizing appropriations to cover salaries). In the absence of s.82, your objection that "the Commonwealth would be obliged to reimburse businesses for revenue collection costs but could not do so unless the appropriate appropriation was passed by parliament" would apply not only to costs incurred by businesses, but also to the ATO's operating costs. On a literal reading, the collection costs referred to in s.82 are not limited to those incurred directly by the Commonwealth. And if s.82 was not positively INTENDED to reimburse collection costs incurred by private entities, that is probably because the drafters of the Constitution did not foresee that the legislators of a "free" nation would be so depraved as to compel private entities to collect tax owed by other private entities. Now that the legislators have indeed stooped to that level, the benefit of s.82 (accidental as it may be) is that private entities who are required to collect tax are at least not required to do so at their own expense.

If, on the contrary, "Treasury" in s.83 means what is left of the CRF after the ATO has covered its costs, then there is no need for s.82 UNLESS the "costs, charges, and expenses" mentioned therein include those incurred by entities other than ATO!

Other issues of interpretation are discussed at http://tribune.grputland.com/2009/06/making-tax-system-comply-with-s82-of.html (especially Section 1 and the Appendix).
Posted by grputland, Tuesday, 29 December 2009 2:09:57 PM
Find out more about this user Visit this user's webpage Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
  1. Pages:
  2. 1
  3. All

About Us :: Search :: Discuss :: Feedback :: Legals :: Privacy