The Carbon Pricing Scheme Is Unconstitutional

* Originally titled “It’s A Tax … No, It’s An Excise … No, We Really Don’t Know WTF It Is”, until I reflected that the above title might better attract a lawyer’s attention.

So.

Our government is going to impose a new cost on “persons”. For their “emissions” of carbon dioxide.

Those persons will have to pay a “charge”.

In exchange, they will receive a “permit” to “pollute”.

A permit to pollute which is both a property right … and effectively, is digital money.

So, what is that new government “charge”, then?

Is it a “tax”?

Is it a “duty of excise”?

It is an important question.

Because upon the answer to that question hinges another, far more important question.

The question of whether the government’s package of legislation bills for its “carbon pricing” scheme scam … is unconstitutional.

Indeed, for anyone paying close attention, there is tell-tale evidence that the government knows full well that their imposing a “charge” under their proposed “carbon pricing mechanism” would be unconstitutional.

Which explains why they are putting forward multiple, mutually-dependent, yet mutually-contradictory bills of legislation as part of their Clean Energy Future package, in a patently deceitful attempt to sneak this massive fraud through the Parliament.

Fortunately, this means that at least 3 of the 13 “backbone” draft bills of their too-clever-by-half package of legislation appear to leave our befanged, blood-sucking, undead government’s coffin lid wide open for any Constitutional lawyer with testicular fortitude and a functioning conscience – or, just a hankering to go down in history as the People’s Saviour – to drive a stake through the heart of the “carbon pricing mechanism” in the High Court.

(Though it may well require concerned citizens to stump up their cash en masse to help pay for a silver stake big enough to slaughter the Establishment – are you up for that?)

Today’s post, dear reader, details how the government’s Clean Energy Future package of legislation is unconstitutional.

Unfortunately, it does take a little time to go through the maze of this sewer-rat-cunning government’s deception.

So grab a cup of coffee, and settle in.

Ready?

From the government’s Clean Energy Bill 2011: Exposure draft, Part 4, Division 2, Section 100, Issue of carbon units for a fixed charge (emphasis added):

Charge payable

(10) If a carbon unit is issued to a person in accordance with this section, the person is liable to pay a charge for the issue of the unit.

(11) Subsection (10) has effect only so far as it is not a law imposing taxation within the meaning of section 55 of the Constitution.

Note: See also:
(a) Part 2 of the Clean Energy (Charges—Excise) Act 2011; and
(b) the Clean Energy (Unit Issue Charge—General) Act 2011.

So.

Where a carbon permit (a “unit”) is issued, and a person is liable to pay a charge for the issue of said unit – in other words, in the most basic function of the “mechanism” for the introductory “fixed price period” – the power of the Act to enforce payment for the unit only has effect insofar as “it is not a law imposing taxation” within the meaning of section 55 of the Constitution*.

Can it be any clearer, dear reader?

I was right.

It is NOT a tax.

The government’s own draft legislation specifically says so.

Greg Hunt MP … pwned!

Next.

Consider carefully the two additional draft bills that are referenced in Section 100 of that primary government bill (emphasis added):

Note: See also:
(a) Part 2 of the Clean Energy (Charges—Excise) Act 2011; and
(b) the Clean Energy (Unit Issue Charge—General) Act 2011.

These are two different pieces of additional draft legislation.

And this is where the deception of this government begins to get really interesting.

Because the second of these two additional pieces of draft legislation for our so-called Clean Energy Future, contradicts each of the others with respect to the key definition.

What exactly is the legal definition – in the government’s proposed legislation – of the act of “imposing a charge” on “persons” in exchange for a carbon permit?

Above, in the major Clean Energy Bill, Section 100, we saw that the government defined that imposing a charge for a carbon permit is not done as an act of taxation under the Constitution section 55.

Just as I have argued all along.

But if not a “tax”, then what is it?

Let’s look at the first piece of additional draft legislation, referenced above as “Note (a)” in the bill for a Clean Energy Act. 

It is called the Clean Energy (Charges—Excise) Act 2011.

Beginning with the title on the front, both the connection and the definition are immediately clear (emphasis added):

A Bill for an Act to impose charges associated with the Clean Energy Act 2011, so far as those charges are duties of excise

And in Part 2 of this bill, we find the following details (emphasis added):

8 Imposition of charge

Auction

(1) If: (a) a carbon unit is issued to a person; and
(b) the unit is issued as the result of an auction;
charge is imposed on the issue of the unit.

(4) Subsection (1) imposes a charge only so far as that charge is a duty of excise within the meaning of section 55 of the Constitution.

Fixed charge

(5) If: (a) a carbon unit is issued to a person; and
(b) the unit is issued in accordance with section 100 of the Clean Energy Act 2011 (issue of units for a fixed charge);
charge is imposed on the issue of the unit.

(8) Subsection (5) imposes a charge only so far as that charge is a duty of excise within the meaning of section 55 of the Constitution.

In other words, this additional piece of draft legislation insists that the government’s imposition of a charge for their carbon permits – in both the “fixed price” and the “flexible price” (auction) periods – will be done only on the basis of the imposed charge being deemed “a duty of excise” under section 55 of the Constitution*.

Clear enough?

The charge imposed is not a tax (Clean Energy Act 2011).

The charge imposed is a duty of excise (Clean Energy (Charges—Excise) Act 2011).

But wait!

The story does not end there.

Oh no, dear reader.

Prepare yourself for the truly risible punchline to this black comedy.

Because in the Note (b) mentioned above in the primary Clean Energy Bill, there is another piece of mutually-dependent legislation.

It is called the Clean Energy (Unit Issue Charge—General) Act 2011.

And this additional piece of legislation specifically and directly contradicts both of the previous definitions of what the act of imposing a charge for carbon permits actually is under the Constitution.

Here is what the Clean Energy (Unit Issue Charge—General) Act 2011 says in its title (emphasis added):

A Bill for an Act to impose charges associated with the Clean Energy Act 2011, so far as those charges are not duties of excise

And here is what we find in Section 8 (emphasis added):

8 Imposition of charge

Auction

(1) If: (a) a carbon unit is issued to a person; and
(b) the unit is issued as the result of an auction;
charge is imposed on the issue of the unit.

Subsection (1) imposes a charge only so far as that charge is:
(a) taxation within the meaning of section 55 of the Constitution; and
(b) not a duty of excise within the meaning of that section.

Fixed charge

(5) If: (a) a carbon unit is issued to a person; and
(b) the unit is issued in accordance with section 100 of the Clean Energy Act 2011 (issue of units for a fixed charge);
charge is imposed on the issue of the unit.

Subsection (5) imposes a charge only so far as that charge is:
(a) taxation within the meaning of section 55 of the Constitution; and
(b) not a duty of excise within the meaning of that section.

So.

According to the Clean Energy (Unit Issue Charge—General) Act 2011 – an Act which is “associated with the Clean Energy Act 2011” – the charge imposed only has force insofar as it is a tax, and is not a duty of excise.

Remember – in all of these pieces of legislation, we are talking about exactly the same “charge”!

Is it possible that this package of blatantly mutually-contradictory legislation might be challenged in the High Court?

Consider again.

We have three separate, yet mutually-dependent pieces of legislation, that are key vertebrae in the “backbone” of the government’s “carbon pricing mechanism”.

The main bill – Clean Energy Act 2011: Exposure draft, Part 4, Division 2, Section 100 – says that the imposition of a charge for carbon permits is not an act of imposing a tax.

Note (a) of that Clean Energy Act 2011, Section 100 references the proposed Clean Energy (Charges—Excise) Act 2011, Part 2.  Which says that

(1) it is an Act that is “associated with the Clean Energy Act 2011″, and that
(2) the imposition of a charge for carbon permits is an act of imposing “a duty of excise”.

But …

Note (b) of that Clean Energy Act 2011, Section 100 references the Clean Energy (Unit Issue Charge—General) Act 2011 Section 8.  Which says that

(1) it is an Act that is “associated with the Clean Energy Act 2011″, and that
(2) the imposition of a charge for carbon permits is an act of imposing a tax, and is not an act of imposing “a duty of excise”.

WTF?

Ladies and gentlemen, your humble blogger is a mere small businessman.  Not a lawyer.

But it seems obvious to me that, if the government cannot clearly and simply define what their charge for a carbon “unit” is – (ie) the burden of proof is on the government to show that their proposed new “charge” is in accordance with section 55 of the Constitution* – then their multiple, mutually-dependent yet mutually-contradictory definitions of what the “charge” is, must offer plenty of scope to challenge the legislation.

Moreover, there is another section of the Constitution which also gives rise to challenging the government’s legislation.

Given that their mutually-dependent, yet mutually-contradictory pieces of the legislation package collectively state that the proposed charge is (a) not a tax, and (b) not a duty of excise either, then the proposed imposition of a carbon dioxide “charge” appears to be in breach of the Constitutional powers of the government, section 51 (emphasis added):

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 51

Legislative powers of the Parliament

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:

(ii) taxation; but so as not to discriminate between States or parts of States;

(iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;

If (as the government’s legislation confesses) the “charge” is not a tax, and is not a duty of excise either, then the government’s proposed imposition of a “charge” in exchange for carbon “permits” (or “units”), is not within the government’s powers to legislate, as defined by section 51 of the Constitution.

Are there any lawyers with testicular fortitude and a functioning conscience out there?

Just one, who might wish to become Australia’s national saviour.

How?

By challenging these key aspects of the government’s carbon dioxide “tax” legislation.

Note carefully just one possible angle of attack.

The entire “introductory” period of the government’s “carbon pricing mechanism” hinges upon the first clause quoted above, in the Clean Energy Act 2011, Section 100.

The government’s draft clause clearly – though sneakily – concedes that the power to demand payment from “persons” in exchange for the (compulsory) issue of carbon permits in the “fixed price period”, rests upon this action not being deemed an act of taxation under Section 55 of the Constitution.

All it takes is for one wise lawyer – backed by ample public funding – to challenge this in the High Court, and demonstrate that:

(a) the government has, in public discourse, consistently and repeatedly used the specific term “tax” in describing the introduction of its “carbon pricing mechanism”;

(b) by contrast, the government’s actual legislation with respect to the introductory “fixed price period” specifically states in its primary Clean Energy Act 2011 bill, that its power to enforce the “charge” during this period is dependent on the act of charging for a “unit” not being deemed an act of “imposing taxation” under Section 55 of the Constitution;

(c) the government’s other, mutually-dependent supporting legislation referenced by the Clean Energy Act 2011 is mutually-contradictory, and therefore the act of imposing the “carbon unit” charge would be in breach of section 51 and/or section 55 of the Constitution – because in the government’s own words, it is not a tax, and not a duty of excise either.

This punitive, climatically–futile legislation can be defeated.

Legally.

The government would, of course, try to defend its position by claiming that imposing a charge for the (compulsory) issue of a carbon “unit” is not a breach of the Constitution section 55.

Saying so, does not make it so.

Moreover, even if a Constitutional challenge failed to stop the legislation – who can really trust the government-appointed High Court, after all – consider this.

The government’s being forced to defend their legislation’s assertion that the introductory “fixed price period” is not a tax in the High Court, would serve to focus the public spotlight on the government’s many months of blatant lies and deception about what their scheme scam actually is.

Because – as I have said all along – what they are calling a “tax”, is not a “tax” at all.

Neither is it a “duty of excise”.

And the government knows it.

As now conclusively proven, by their own draft legislation.

Here finally endeth the lesson, on the “tax” that even the government’s own legislation says is not a “tax”.

Calling all lawyers …

* COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 55

Tax Bill

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 or of 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.

Tags: carbon pricing mechanism, carbon tax, Clean Energy (Charges - Excise) Act, Clean Energy (Unit Issue Charge - General) Act, Clean Energy Act, constitution, duty of excise, High Court, legislative powers, section 51, section 55, taxation