“By their words you shall know them.”
What is the biggest red flag alerting you to the likelihood that a government bill is unconstitutional?
When the wording of a government bill repeatedly insists that it is in compliance with a section of the Constitution.
Or, when the bill repeatedly insists that it does not do something, or is not something, that would constitute a breach of the Constitution.
Because if it were in keeping with the Constitution, then there would be no need whatsoever to say anything.
This is not just the rational surmising of your humble blogger.
A constitutional law expert agrees.
From Yahoo!7 News (emphasis added):
Government facing mining tax revolt
… [Macquarie University’s] Dr [Margaret] Kelly not only thinks Fortescue will get a hearing but that it has a decent shot at winning the case.
“Given the shortness of the Act, the lack of definitions in the Act, and the very general nature of the Act, then I, if I were the Commonwealth, wouldn’t be as hopeful as apparently the Prime Minister currently is,” she said.
She says challenges made under section 114 of the Constitution would attract serious consideration by the High Court.
“The fact that each of these acts purports to say the Act does not impose a tax on the property of the states, I think, quite clearly raises that question unambiguously.
“The acts in their various forms also raise the question of, is this really a tax as opposed to being, as I say, a pecuniary penalty or some kind of fee?
“That too is a constitutional question.”
Dr Kelly is right.
In the 425 page (!?!) Explanatory Memorandum to the 288 page Minerals Resource Rent Tax Bill 2011, we find the following (emphasis added):
Imposing the MRRT
3.31 The MRRT is imposed by three different imposition Bills. One imposes MRRT to the extent that it is a duty of customs [section 3, MRRT customs imposition Bill]; one imposes MRRT to the extent that it is a duty of excise [section 3, MRRT excise imposition Bill]; and one imposes MRRT to the extent that it is neither a duty of customs nor one of excise [section 3, MRRT general imposition Bill]. This reflects the constitutional requirement that laws imposing duties of customs shall deal only with duties of customs and that laws imposing duties of excise shall deal only with duties of excise (see section 55 of the Constitution). However, there is only one assessment Act.
“This reflects the constitutional requirement” does it? Utter bollocks! What it “reflects”, is Australian governments’ now standard method of circumventing the clear wording and plainly obvious intent of the authors of the Constitution. I for one have no doubt whatsoever that when the authors of our Constitution wrote section 55, they certainly did NOT do so with the intent that every new tax, customs duty, or excise duty, should require the separate drafting and passage through both houses of Parliament of multiple, interdependent but at the same time, mutually-contradictory bills defining the new impost as being (1) not a tax, (2) a duty of customs, (3) a duty of excise, and (4) neither a duty of customs nor a duty of excise. To suggest otherwise is risible, and would be to assume that the authors of the Constitution wanted to make it as complicated and difficult as possible for government to impose genuine taxes, customs duties, and excise duties. No dear reader – the true reason why Australian governments (both “sides”) use this multiple interdependent but mutually-contradictory bills technique, is plainly obvious: their new imposts are not taxes, customs duties, or excise duties. They are unconstitutional money grabs … and they know it.
3.33 MRRT is not imposed on property belonging to a State. That ensures that the MRRT complies with section 114 of the Constitution, which prohibits the Commonwealth from imposing a tax on any kind of property of a State. In practice, this will only have an effect to the extent that a State mines its own taxable resources. In that case, the State will not be subject to MRRT.
Your saying so, does not make it so.
Indeed, the opposite is true.
Your saying so, almost certainly makes it not so.
Previously, we have seen exactly the same blatant Constitution-sidestepping ruse used in the 19 different bills and 1,000+ pages of the Clean Energy Future 2011 legislation:
(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.
Clean Energy (Charges – Excise) Act 2011
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 compare …
Clean Energy (Unit Issue Charge – General) Act 2011
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
The government’s bills for the mining tax, and the carbon tax, are not unlike a spoilt domineering child trying to get its own way.
Fingers inserted in ears.
Eyes screwed tightly shut.
And insisting, “It IS it IS it IS it IS it IS!”
Or, “It’s NOT it’s NOT it’s NOT it’s NOT it’s NOT!”
Basic rule of life, dear reader.
Listen very, very carefully to a government’s words.
Then ask yourself, “What is the opposite of what they have said?”
The opposite, is far more likely to be the truth.