Remember the “Malaysian Solution”?
Millions of Australians hated it. And rightly so.
And yet, the government pressed ahead anyway.
What stopped them?
No, not protests.
Not “people power”.
The Malaysian Solution was felled in the Courts.
And I suggest to you, dear reader, that it is the only way to fell the government’s carbon tax legislation too.
Regular readers will know that I wrote a blog nearly two months ago detailing the illegality of the government’s draft legislation – The Carbon Pricing Scheme Is Unconstitutional.
And the final legislation is essentially the same. Indeed, it includes additional key phrases effectively conceding the unconstitutionality of the legislation, and the government’s deliberate structuring of multiple bills in order to defeat circumvent the clear statement and intent of the Constitution.
So, I believe that it can be stopped in the Courts.
Although the government is presently railroading the legislation through Parliament, they have doffed their cap to the idea of “democracy” by appointing a Joint Select Committee to receive submissions on the legislation. Closing this Thursday … get the feeling they’re in a rush?
Below is a draft submission to the JSC that I have written. Your comments, suggestions, constructive criticisms are invited:
The Secretary
Joint Select Committee on Australia’s Clean Energy Future Legislation
Parliament House
CANBERRA ACT 2600
Australia21 September 2011
Dear Sir,
REFERENCE: Clean Energy Bill 2011, Clean Energy Unit Issue Charges Bills 2011, Clean Energy (Household Assistance Amendments) Bill 2011, and the Australian Constitution s.51(ii) and s.55
We the undersigned would draw the Joint Select Committee’s attention to the above mentioned Bills, insofar as they appear to represent breaches of the Australian Constitution s.51(ii) and s.55.
Should the government press forward with passage of the above mentioned legislation in the Parliament, we the undersigned advise that injunctions will be sought preventing the issue and/or the auction of carbon Units, and also preventing the issue of Clean Energy payments (Household Assistance), until such time as the constitutionality of key points of the legislation can be tested before the Courts.
Sincerely,
*********
[Name]
[Address]
Thoughtful readers will see the strategic rationale behind this submission.
The government has included “poison pills” in their legislation in order to make it difficult to repeal.
As one example, by clearly stating that carbon Units are the “personal property” of the holder/purchaser, the government aims to confer a property right. One that may require compensation in order to remove.
Seeking a High Court injunction/s to prevent the issuing/auctioning of carbon permits (Units), and also preventing the issue of household assistance (compensation), will serve to neutralise the “poison pills” that the government has included in their legislation until such time as the constitutionality of the legislation can be tested in Court.
(UPDATE: And may serve to delay the carbon tax until after a new election is called, or triggered in May 2012 by Andrew Wilkie?)
If you wish to support this submission, please so advise and give your full name and location in Comments below. I will add your details to the submission here.
If you are a lawyer/barrister and wish to assist with bringing a motion for an injunction/s, please so advise and provide contact details below.
Many thanks.
Barnaby Is Right 
Concerned citizen of Australia. Bunbury WA I sign this to stand against the complex Carbon Tax which Julia Gillard intends to introduce, a major tax reform against the wishes of the Australian public, which only 4 days have been given to public to lodge submissions against it. Our constitutional rights must be maintained if Australia is to remain a democracy.
If you wish to support this submission. Lyndsay Farlow, Port Macquarie NSW 2444
I wish to support this submission. My location is Perth, Western Australia
Likwewise I am a concerned citizen of Australia, from Brisbane QLD. I sign this to stand against the complex Carbon Tax which Julia Gillard intends to introduce without mandate and against the wishes of the Australian public, and for which only 4 days have been given for the public to lodge submissions against it. Our constitutional rights must be maintained if Australia is to remain a democracy. If the current government wishes to introduce this bill it should first call a General Election in order to either secure a mandate or otherwise,. in which case the legislation should be scrapped.
Dodges Ferry Tasmania
Sounds good, surely would also mean the end of the present government.
Reckon so JMD.
Sean Morrison, Greenacres SA 5086
Hannah Jorgensen of Biddaddaba, Qld 4275
I’m confused.
Every labour MP now refers to carbon as ‘carbon pollution’, does this delusive term, appear anywhere in the proposed legislation?
Is ‘carbon pollution’ solely a by-product of industry, because carbon clearly is not?
Is this a tax on carbon or a tax on ‘carbon pollution’? Is there a huge door being left ajar here for expansion of scope?
—————————-
‘Tony Abbot should state that the coalition, will not rescind this act, because he cant’
Why is the Government saying this? Some kind of binding global treaty that can never be rescinded…this has been disclosed and discussed?
It is kind of important.
—————————–
‘A bad tax, based on a lie’
Again, I’m confused, because he goes on to detail the oppositions proposal to cut carbon emissions….why cut, if it is a lie?
What is the lie he is referencing here?
You can search the bills for the term “carbon pollution” here Chris http://www.climatechange.gov.au/government/legislation.aspx.
It’s somewhat pointless spending time on what the politicians say. They lie constantly. The only thing that ultimately matters (in terms of stopping them), is the precise wording in the laws they wish to impose. And on that, we have courts to adjudicate.
Thanks
Ideas? :
Why can the bill not be rescinded?
What is the lie Abbot is referencing?
I think the claim “can not be rescinded” is largely hyperbole. The more truthful comment would be “we are deliberately making the legislation as troublesome as possible to rescind”.
The lie Abbott is referencing is doubtless the pre-election “There will be no carbon tax under a government I lead” statement by Gillard.
ok I see, we’ve gone from ‘Carbon Pollution’ as a bill title to ‘Clean Energy’ but the use of ‘Carbon Pollution’ as a PR sledge hammer has ramped to every other sentence….I guess to scare the kids and really peeve off adults, that have exited the propaganda left=right matrix.
Sounds really nice now…clean and energetic
I wish to support this submission. My location is Melbourne, Victoria
Your surname, Tony?
Barnaby
I support this submission
Colin J Ely
Blackburn, Victoria
I also support this submission.
Betty Whiffin
North Turramurra NSW
I wish to support this submission
Laurence Wynen
Your location, Laurence? Suburb and state will be fine.
Who are you
My name is Colin McKay – see details at first signatory in the Petition here – https://barnabyisright.com/2011/09/19/sign-the-petition-carbon-tax-high-court-challenge/
I’m in Coffs Harbour NSW
Cheers mate.
Count me in, despite only the first signature of a petition carrying any legal weight
Chris Foster – Adelaide
—
Is a Peoples’ Mandate also effective, before the vote?
Public Petitions are Ineffective, Express Your Will with a Peoples’ Mandate: http://goo.gl/UllDE
Thanks for the tips. This submission is more a statement of intent, Chris. I’ve little doubt that there is no way the JSC will advise the govt to pull the legislation, just on the strength of this submission.
You might call it “a shot across their bows” 😉
I had thought of trying to muster a committee/s to gain 51% of eligible voter signatures in key electorate/s (eg, Independents, marginal ALP with mining constituents, etc) in order to pressure a crossing of the floor. Unfortunately, the legislation is being railroaded through Parliament with maximum speed, so no time for that to be feasible. I think delaying the implementation via injunction/s, and challenging constitutionality (with side benefit of further delays until hopefully a new election), is the only plausible course remaining.
Nice work.
It feels like there’s a compelling force behind this Act of political suicide, beyond ideology…..and it’s certainly not the citizens.
Indeed it does Chris.
Ok. If it has to be done through the courts, so be it. This thing has to be stopped dead in its tracks.
My name is Phil Hingston. Eastwood, Sydney. (aka Tomorrows Serf)
Add me to the list, Colin..
Thanks Phil.
I support this submission.
Veronica SIdhu
Camberwell.3124
Tracey Watts
Brisbane QLD 4000
I will support any effort to stop this travesty..
Vincent Schultz
Maclean, NSW 2463
I support this submission. Please add me
JR Edward
Glen Waverley, 3150
I too support this submission, the Gillard government has no mandate to impose a carbon tax on this nation. Especially when she gained the Prime ministership on a LIE
Anthony Grizaard
Perth WA
The Gillard has NO MANDATE to force a carbon tax on Australians. And the clause stating NO REPEAL is arrogant, vindictive and repressive. No other Prime Minister of Australia or elsewhere has ever treated their citizens in this manner. Abhorrent and against all decency.
Do you wish to support the petition, Betty? If so, please provide location (suburb, state, postcode). Many thanks.
Weekly Telegraph (news from UK Telegraph printed in Australia weekly) front page today 12/10/2011: “Financial crisis is the worst the world has ever faced” What a time to bring in a tax when no other country is doing so.
Yes. My location is North Turramurra, NSW 2074. I am 81 years of age and should know what I am talking about.
I wish to support the submission, thank you.
Kerry Southerden
Welby N.S.W
The ultimate danger to the Australian democratic process and way of life is not the Gillard / Swan / Brown Government but a citizenry capable of entrusting people like them with power and responsibility. It will always be far easier to limit and undo the follies of their lunacy than to restore the necessary common sense and good judgement to a depraved and indifferent electorate willing to have such a group govern us. The problem is much deeper and far more serious than the poor judgement expressed daily by this group, who are a mere symptom of what currently ails much of Australia.
Blaming the fools should not blind anyone to the vast confederacy of fools that made them thus. Australia can survive Labor’s idiocy, because Labor is currently represented by mere base idiots. What Australia is less likely to survive, is the multitude of fools who support and condone their continuing leadership
Indeed.
Willing to support this petition. This CT is against what the majority of the world is doing.
Andrew Johnson
Liverpool, NSW, 2170
I support this action
Anton Hardy
Brisbane
Qld
I support this petition unreservedly.
Bill McAuliffe Hocking Perth WA
I wish to support your submission.
Stephen Harper Mt Lawley WA 6050.
You are fighting the good fight. Never give up!
Please add my name
Val Majkus Toowoomba QLD 4350
I support this petition
maree Baker
Sydney NSW
This idea is from a comment made by “Pompous Git” on the WUWT thread on the subject of this legislation.
First, the parliament is not the government; the Queen of Australia is our government. Our representatives in parliament are there to express the WILL of the electors. Let’s say a majority of electors tell their representative that it is their WILL that they vote against this current bill. If said representative votes in favour, then the electors are entitled to demand of the Governor General (the Queen’s representative) that she remove the representative from the parliament and holds a bye election. Should the GG refuse, then the Queen is bound by the Australian Constitution to do the reoval of the recalcitrant representative.
If you write to a representative and tell him you want such-and-such, you will mostly be ignored. If you express your WILL that such-and-such be done, then you will nearly always be paid attention. Because the Rep knows that you have some understanding of our constitution and your rights as an elector.
I had thought previously of trying to organise a group to canvas a key electorate – say, Oakeshott’s, or a marginal Labor in coal-mining electorate (Fitzgibbbon, et al) – to get 51% of voters signatures on a “It is our will that…” mandate document. Unfortunately, this is being rammed through Parliament so fast that I can’t see that being done in time, unless others volunteer to assist – it would take dozens of feet-on-the-ground to achieve it.
I’m willing to coordinate and part-fund such an exercise if others are willing to offer their time/travel for a few weeks of door-knocking …. ??
I wish to support the petition,
David Wood
Minyama QLD
I wish to support your submission.
Max Larter
Galong NSW
I support your submission
Liz Penprase
Alexandria NSW 2015
I too wish to support this submission.
Simon Ludborzs
10 Whistler Grove
Hewett, South Australia
I support your submission
Kareem
Brighton VIC 3185
Your surname?
I wish to support this submission. My location is Mt Barker, SA
Hi Barnaby,
Add my name in support of your submission;
Ben Hern, postal address Morphett Vale South Australia.
I’ll email offlist with full postal details if you wish.
Whether it’s worth the effort, I submitted my own six page submission objecting to the draft legislation last night.
I’m currently posted to a work position in Norway and so have the change to see how a carbon (dioxide) tax increases the cost of living and in particular the cost of mobility, but does nothing whatsoever to reduce the consumption of energy and fuel, and thus does nothing to reduce the emission of harmless CO2.
Good for you Ben. Always worth the effort to let them know your views.
Constitutionally the Act set out the assessment and machinery of collection of a tax is always in a different Act to the one imposing it. So, your income tax (which includes CGT) is assessed under the Income Tax Assessment Act but the tax is imposed by the Income Tax Act – there is a third Act, the Income Tax Rates Act which sets out the rates. So, this proposed system seems exactly the same – and thus constitutional.
The problem stems from s 55 of the Constitution, and relates to the fact that taxation bills are dealt with differently from other bills constitutionally (the purpose is to prevent the tacking of unrelated non-taxation matters onto taxation Bills which the Senate is unable to amend under section 53 of the Constitution). Sec 55 says:
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.
Thus, to the extent that a bill proposes more than just the imposition of a tax – which is most tax bills, by the way, as they usually provide for other matters related to but not exactly the imposition of the tax, such as concessions and exemptions and other social or economic benefits or detriments – it will need to be separate from the bill which literally imposes it.
The second paragraph of s 55 provides that laws imposing taxation shall deal with one subject of taxation only. That means, to the extent that a tax is a mere tax it must be imposed by a separate Act to a tax which is a customs tax, and a tax which is an excise must be imposed by a different Act again. The problem with a carbon price which acts like a tax, as this appears to, it may be a mere tax in some instances, an excise in others and a customs duty in yet others. Constitutionally, the machinery and collection provisions can be in the one Act, but the imposition must be enacted separately to the extent that it is a mere tax, and excise or a customs duty.
For these two reasons, the Act imposing the tax is always separate from the Act assessing it and providing for other machinery and collection provisions. Likewise, if a tax could operate in different circumstances as a different type of tax, it will need a separate imposition Act for each type of tax – in this case, all three types. To make it clear that each Act is doing its own constitutionally limited work, it is common to make references in the various provisions like ‘this is not an excise’ etc. . [As an example, when the GST was introduced, it was introduced as three Bills: the A New Tax System (Goods and Services Tax Imposition-General) Act 1998; the A New Tax System (Goods and Services Tax Imposition-Customs) Act 1998; and the A New Tax System (Goods and Services Tax Imposition-Excise) Act 1998. I believe a constitutional challenge against it failed.]
So, I think the general tenor of these bills looks like they fit the norm and will be constitutionally valid. If you think about it, Treasury and the Parliamentary draftsman have been doing this for a long time, and I doubt they will have made major errors – there’s always the possibility though.
Tax law is actually irrelevant as the carbon tax is not by legal definition a tax. It is a permit that is purchased and can be traded to another party.
It meets every constitutional requirement for property as defined by the constitution nd upheld by the High Court. A carbon unit is a clearly defined, valuable statutory instrument that can be possessed, controlled, transferred, assigned and mortgaged by its owner.
Defining it as “personal property” is irrelevant.
The real question is whether repealing the act and making them dissappear amounts to acquiring them. Does somebody else get a “benefit” from their “acquisition”.
The danger of going down this road is very real however. By the same argument, a piece of legislation negating title to make a national park for instance would also not require compensation.
They need to knock down your house to build a freeway, no problems. Just take the land, so long as it isn’t a toll road, shouldn’t be a problem.
“Tax law is actually irrelevant..”
Correct.
“.. as the carbon tax is not by legal definition a tax.”
Incorrect. Read the legislation. Depending on the particular bill, the imposition of a carbon price is specifically defined as being a tax under s.55 of the Constitution. Other, mutually dependent (by definition) bills in the package specifically contradict this, and define the imposition of a carbon price as being a duty of customs, or duty of excise. The legislation is clearly challengeable under multiple sections of the Constitution, not just s.55. For example, under s.114 – see here.
Hi. I wish to join the petition.
Bradley Clarke Durack QLD 4077
the view that i have is, the carbon tax is a quick scheme to make a revenue profit.
she is using good intentions to over right the decision saying it is to save the planet but it will not have any effect in the long run, will we still drive cars. will the coal mines close. the answer is no, of cause not. the reason is that people can afford the tax, so the tax will be paid and the consumption will continue to rise due to population and the need for items and cars and money. if Australia is the only one taking action with this tax then there is no point. Australia is only 0.33 percent of the worlds population. so if more action was brought forth from other countries then the carbon tax would work
It would only “work”, in the sense of what it is and always has been intended to achieve, Samuel. And that is, to create the legal entity (fiction) of a new tradeable “commodity” (carbon permits), over the top of which the banks can create an unlimited quantum of new “securities” (derivatives) to trade in a new global casino. This has been detailed and proved on this blog – see here, here, here for just a few examples.
Carbon “taxes”, “emissions” trading schemes et al have no other purpose … NONE … but to benefit international bankers.
None.
At.
All.
I wish to support this submission
Martin Clark BA GradDipTP
Building Design – Planning – Landscaping
QBSA licence no. 31268
Web: http://people.aapt.net.au/jclark19/
Email: troppo19@gmail.com
Townsville NQ Australia
When will the legal battle start in the High Court over this? It’s not looking good at the present..
Michael, one would like to think that any one of a number of interests (eg, manufacturers, trucking co’s, small business assoc., etc) would be likely to mount a legal challenge. If not, then for the grassroots population to do so would require funds.. and a lot of them, unfortunately… to pay for legal expertise in mounting the challenge. Key to remember for the moment is that there’s no rush, provided a challenge is brought before they issue any carbon “units”.
I disapprove of the Carbon Tax , Ann NSW