Tax Expert Pushes For Carbon Tax High Court Challenge

10 Apr

From the Age:

Carbon tax is ‘unconstitutional’, says tax expert

A PROMINENT Australian legal expert says he believes the Gillard government’s carbon tax is unconstitutional and that the three largest states stand a chance of successfully overturning the legislation in the event of a High Court challenge.

The University of New England academic and practicing barrister, Bryan Pape, has provided legal advice to conservative policy think tank, the Institute of Public Affairs, that says the carbon tax legislation — due to come into effect on July 1 — could be challenged on several grounds including that, ”the Commonwealth cannot tax State property: Legally carbon dioxide emissions are State property”.

The advice goes on to say that, in Mr Pape’s legal opinion, ”the Commonwealth cannot impose a carbon tax and other related penalties within the same Act. The Commonwealth cannot introduce a carbon tax within its external affairs powers”.

Mr Pape — a specialist in taxation and administrative law — made headlines in 2009 when he mounted a High Court challenge over Labor’s $42 billion stimulus package, arguing that the $900 payments to individuals exceeded the federal government’s taxation powers.

“These greenhouse gases are property owned by the States and it is impermissible for the Commonwealth to impose any tax on any property of any kind belonging to a State,” Mr Pape said.

The full bench of the court ruled in favour of the Commonwealth by a margin of 4-3.

IPA Climate Change policy director, Tim Wilson, told the National Times today that the think tank had commissioned the advice in a bid to prod the states into action against the carbon tax, a piece of legislation the conservative body has long opposed.

”The IPA commissioned a legal opinion because state governments have sat on their hands and let the Gillard government introduce a tax that they could potentially stop,” he said.

Indeed they have sat on their hands. Premier Barry O’Farrell’s pre-election pledge, and subsequent failure to act, despite publicly affirming to this blogger that he would have the State A-G look into it, is the classic example.

”Only the High Court can decide the constitutionality of the carbon tax, but there are clear grounds to challenge it according to one of Australia’s top administrative law minds.”

Mr Wilson said the full text of the legal opinion would not be released ”pending a possible legal challenge.”

”A copy has being provided to the Premiers and Attorneys-General of the states with the best legal standing for a potential challenge – New South Wales, Queensland and Western Australia,” he said.

The legal advice will arrive on the desks of state premiers as they prepare to travel to Canberra this week for Friday’s Council of Australian Governments meeting, where, for the first time in 4½ years in office, Labor will be outnumbered at the negotiating table.

Long past time that others joined the fray to pressure State premiers such as Barry O’Farrell and Campbell Newman to make good on their pre-election promises.

As regular readers know, this blog has been arguing that the carbon tax CO2 derivatives scam is unconstitutional since mid-2011 when the draft legislation was released; reported on Bryan Pape’s expert legal advice on 18 October 2011; reported on constitutional expert Greg Craven’s advice on 21 March 2012, and has been petitioning Liberal State governments to challenge the legislation.

Please add your voice to that of this blog, and now, that of the IPA, by writing your State Premier to express Your Will that they honour their pre-election promises.

The promises that were key to putting them into power.


Just as your humble blogger has argued, there are multiple grounds upon which the CO2 derivatives scam can be challenged (emphasis added) –

When it comes to the carbon tax, Mr Pape has a number of back-up arguments aside from his main contention that the Commonwealth can’t tax state property.

He also suggests the Commonwealth can’t impose a carbon tax and related penalties within the same piece of legislation nor use the external affairs powers of the constitution.

As I was saying.

3 Responses to “Tax Expert Pushes For Carbon Tax High Court Challenge”

  1. Betty Whiffin April 10, 2012 at 11:42 am #

    Mr Pape should have won the Court case regarding the $92 bln spent on the stimulus package, with $900 given to people overseas,dead people, pets and sundry. A total waste of that money as with the debarcle on the Pink Batts, etc. It was ridiculous and didn’t achieve anything – just look at the retail figures then and now. Didn’t do any good at all just wasted.
    It is about time Mr Pape is listened to regarding the Carbon Tax. and pushing the Premiers to act and take this to the High Court for a challenge. He has a very good case. The people don’t want it, it is to come in on a lie by the Prime Minister without the consent of Australians and now Mr Pape’s reasons are very valid. Come on Premiers, do your best for Australia and Australians and challenge the tax in the high Court.

  2. Geoff Collet April 10, 2012 at 12:23 pm #

    Regardless to the validity of Mr Papes legal opinion I have learned from experience never to trust a judge to abide by writtren law. The following is the experience I am referring to
    I was once alledged to have taken fish illegally. NSW fisheries being unable to seize the fish, seized the market cheque. At the folowing court case I was aquited but NSW Fisheries refused to return the fish cheque.
    I then had to resort to court action for return of said fish cheque. Prior to the hearing the NSW Fisheries solicitor went into another room with the judge. At the hearing the Fisheries Act was gone through thoroughly for 3 hours. It was found that there was absolutely nothing in the Act that allowed fisheries to retain the cheque. After the end of hearing, when no more argumsnt was allowed the judge ruled in favour of NSW Fisheries and the cheque was not returned. The fisheries officer who initiated the first prosecition turned to me and said ” I can not believe it, I could see us handing you back the cheque ”
    Never ever trust a judge to give an honest hearing.

  3. Kevin Moore April 10, 2012 at 1:38 pm #

    Would not the owners of the Commonwealth of Australia Corporation dictate the larger policy matters?


    What follows is the complete explanation of the contempt by all Political Parties of the;

    Australian Constitution Chapter One, Part IV. — Both Houses of the Parliament.

    Section 44 and Section 46;

    Item (9).
    44. Any person who–
    (i. ) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power,
    or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a
    foreign power:

    (v. ) Has any direct or indirect pecuniary interest in any agreement with the Public Service
    of the Commonwealth otherwise than as a member and in common with the other members
    of an incorporated company consisting of more than twenty-five persons:

    shall be incapable of being chosen or of sitting,
    as a senator or a member of the House of Representatives.

    46. Until the Parliament otherwise provides, any person declared by this Constitution to be
    incapable of sitting as a senator or as a member of the House of Representatives shall, for every day
    on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in
    any court of competent jurisdiction.
    All political Parties and the United Nations are Non Government Organisations and as such would be
    the opposite to Section 44. (i. ) are under acknowledgment of allegiance, obedience, or adherence to
    a foreign power by sending armed forces to Afghanistan and Iraq and;

    What right has the Prime Minister to replace the Governor-General as the command in chief of the
    naval and military forces of the Commonwealth that is vested in the Governor-General as the
    Queen’s representative. Chapter 2. Section 68?

    Section 44. (v. ) in common with the other members of an incorporated company consisting of more
    than twenty-five persons;

    The Parliament of Australia has more than 150 persons.
    COMMONWEALTH OF AUSTRALIA registered in the

    CIK (0000805157)
    SIC: 8880 – American Depositary Receipts
    State location: DC | Fiscal Year End: 0630

    Business Address

    Constitutional Commonwealth of Australia
    There is much trickery in the word usage itself.

    A “Sovereign Nation” for instance really means a “nation-state” or “a corporate entity with sovereign powers” such as the two entities COMMONWEALTH OF AUSTRALIA [SEC filing in Washington DC in 1934 already].

    From what I can gather it appears that the original system of the Constitutional Commonwealth of Australia [lasted only for a relatively short time period between 1900-1919, perhaps in original form] is still in existence to this very day, but laying largely dormant due to the now non-existence of Constitutionally-approved money of substance as per the terms and conditions of original Constitution which in any case, was nothing more than a debt-repayment contract for debts of the country accrued between 1850-1900].

    Then came the COMMONWEALTH OF AUSTRALIA CORPORATION at least as early as 1929 if not before, which has a SEC filing in Washington D.C. filed as early as 1934, a few years after the 1929 bankruptcy.

    With it’s PARLIAMENT OF THE COMMONWEALTH all of these, other than the original Constitutional Commonwealth of Australia, are what you call SOVEREIGN NATIONS which really means “Corporate or Nation-States with Sovereign Power i.e. operating in their own right as properly established corporations with the power to make rules for their corporation and those who are members of their corporations i.e. AUSTRALIAN CITIZENS.

    It appears that Queen Elizabeth the Second [the true original Monarch] cannot not assent to legislation for the corporations known as COMMONWEALTH OF AUSTRALIA but her original Constitutional system is still in existence albeit laying dorment due to the fact that we are not operating according to the law in our financial affairs [i.e. we are NOT using Constitutional money of substance, the most critically important but least known or mentioned “condition” of the original Constitution].

    Put in another way, the Crown of the United Kingdom of Great Britain and Ireland, under the Constitution is now a foreign entity to the corporations/nation-state/SOVEREIGN NATIONS known as COMMONWEALTH OF AUSTRALIA which belong to and essentially established by the IMF/UNITED NATIONS.

    Therefore in our current PARLIAMENT OF THE COMMONWEALTH one cannot swear allegiance to a foreign entity – that is, the Crown of the United Kingdom of Great Britain and Ireland, under the Constitution hereby established that is now an entity foreign to that corporation known as COMMONWEALTH OF AUSTRALIA, with a fictional “QUEEN OF AUSTRALIA” which is just a fictional title [no flesh and blood entity behind it].

    So in reality the Constitutional protections and true protection of the law lay in one claiming to be a member of the original Constitutional Commonwealth of Australia whereby Queen Elizabeth the Second [the living flesh and blood monarch] still reigns albeit not currently operating or controlling the current “public offices” in any fiscal sense of the word, however, the original Constitutional protections and guaranteed rights under the original Constitutional Commonwealth of Australia are still in operation and still exist for they can only be removed by a referendum of, for and by the people.

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