Abbott Affirms That I Was Right – Carbon Tax Unconstitutional

Regular readers know that I have argued the case against the constitutionality of the CO2 derivatives scam throughout 2011.

Constitutional barrister Bryan Pape has affirmed it.

Mining billionaire Clive Palmer’s legal team has affirmed it.

Now, Tony Abbott has affirmed it too:

Opposition Leader Tony Abbott says the federal government’s carbon tax may be unconstitutional.

Mr Abbott was responding to Queensland mining magnate Clive Palmer’s planned High Court challenge against the tax.

“I certainly think that there are some constitutional issues,” he told Fairfax Radio on Thursday.

“Normally the Commonwealth can’t tax the states, for instance and this is going to be a tax that’s paid by state governments.”

State governments would be the obvious candidates to challenge the constitutionality of the tax cut, Mr Abbott said.

Mr Palmer first threatened the move last year and now says he has legal advice that the carbon tax laws passed by parliament in November are unconstitutional.

On all points, I was right.

The Clean Energy Future legislation is a deliberate attempt to circumvent sections 51 and (espec.) 55 of the Constitution – as Clive Palmer’s legal team have clearly advised him:

s.51 – 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;

s.55 – 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.

The legislation also breaches section 114 of the Constitution –  as Bryan Pape has affirmed, and Tony Abbott has indicated:

A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.

On Sunday 4 March, NSW Premier Barry O’Farrell personally assured me that he would have the NSW State Attorney-General look into a constitutional challenge.

Given his No. 1 election campaign pledge, Mr O’Farrell has no excuse not to challenge.

Let us see if Tony Abbott’s words today prompt any real action on the part of Liberal State Governments such as NSW, Victoria, and WA.

I’m not holding my breath.

They are politicians, after all.

I’m infinitely more inclined to trust the word of National Living Treasure Clive Palmer, than of the invertebrate liars posing as elected representatives of the Australian public.

UPDATE:

Money is no object:

CLIVE Palmer has declared he is not a “frivolous” litigant as the Gillard government blasted the billionaire miner, saying his threatened High Court carbon tax challenge showed he had “more money than sense”.

Climate Change Minister Greg Combet said litigation was one of Mr Palmer’s “hobbies”, and the carbon tax was constitutionally sound.

But the Mineralogy boss and Queensland Nickel director said he was serious about the challenge, and was unconcerned over how long or how costly the case became.

“(The challenge) is by Queensland Nickel and it has a turnover of about $800 million a year, so the costs are neither here nor there for the company,” Mr Palmer told The Australian Online.

“You don’t mount challenges frivolously; you do so based on advice that you’ve got a strong case.

…

Mr Palmer said Queensland Nickel had received preliminary legal advice showing the government’s carbon tax was unconstitutional.

He said the company would receive its final advice next Friday and was hoping to have proceedings underway in the High Court by mid-April.

“We will keep fighting it until we get the judgment. If we lose we will pay our costs and that will be it,” Mr Palmer said.

…

The 58-year-old mining boss is a staunch opponent of the government’s carbon and mining taxes but said ultimately it was a decision for Queensland Nickel’s board to launch proceedings.

Mr Palmer donates heavily to the Coalition.

“Politically I’ve expressed my view but that’s got nothing to do with the legality of it,” he said.

“The legality is another question. It’s a legal act by the government and they should be held to account.”