Tag Archives: Clean Energy Act

Bankers’ Trojan Horse In Carbon Tax: Expert Confirms Breach Of Constitution

18 Apr

Your humble blogger recently sought legal advice from a prominent constitutional barrister, specifically concerning clauses 109A and 110 of the Clean Energy Act 2011.

Regular readers know that I have argued from before the release of the draft legislation in July 2011 ( Our Bankers’ Casino Royale – “Carbon Permits” Really Means “A Licence To Print” ), that the so-called “carbon tax” is in truth nothing more than a cleverly disguised, banker-designed and promoted derivatives scam ( Ticking Time Bomb Hidden In The Carbon Tax ).

Like the mortgage-backed derivatives that blew up the world financial system in the GFC, carbon-unit-backed derivatives are simply the next form of wholly unregulated, unmonitored, shadow banking artificial “money” creation that has had bankers licking their lips in anticipation from the moment the(ir) draft legislation was released:

14 July 2011, Business Spectator — Australian banks are eyeing opportunities to cash in on the proposed carbon tax by developing new financial products and services that capitalise on a market seen to be worth billions of dollars annually, according to a report by the Australian Financial Review.

Australian financial firms that have experience in European carbon markets, such as Macquarie Group Ltd, Westpac Banking Corp Ltd and ANZ Banking Group Ltd are particularly keen to establish their presence in the Australian market….

ANZ’s head of energy trading said the value of the derivatives carbon market would dwarf the $10 billion initially raised by the government, according to the AFR.

I have now been informed by the eminent barrister referred to above, that I am right.

If it is judicially accepted that the Clean Energy Act 2011 is a bill “imposing taxation”, then the two cleverly worded little clauses buried within 1,000+ pages of legislation that I have long identified as those that specifically allow the shadow banking industry to begin creating and trading (unlimited quantities of) carbon dioxide derivatives, are, in the barrister’s opinion, in breach of section 55 of the Constitution:

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.

As we have seen previously, there are numerous other areas of the legislation whose constitutionality is highly questionable and thus contestable, under section 55 and other sections too.

Indeed, a number of constitutional experts such as Professor Greg Craven have publicly affirmed as much.

Unfortunately, I am advised that private citizens have no legal standing to mount a challenge against the legislation in the High Court.

[EDIT: For the reason that private citizens are not directly subject to the legislation. This perhaps answers the question many have asked, as to why the government still refuses to release a definitive list naming who exactly are the “biggest polluters”. If those who will have standing to challenge the legislation in the High Court do not have confirmed proof of this, it would appear that they could not prove legal standing in order to file an injunction to prevent the bankster scam starting up in the first place. Doubtless this key information will not be made known until after the government has sent out billions in “compensation” bribes to households in May, and parked $10 billion in the banksters’ Clean Energy Finance corporation in such a way that it cannot be retrieved.]

Those in the best position to mount a legal challenge, who do have standing before the High Court, are the State governments.

Sadly, as we have also seen, the Liberal-National Premiers of NSW and Queensland are even more vile, despicable liars than Julia Gillard.

Having campaigned heavily for our vote on the back of a solemn promise to “fight” the carbon tax if elected, Barry O’Farrell and Campbell Newman have now shown their true colours.

As two-faced standard bearers.

For the predatory, parasitic banking industry that they depend on to help finance their election campaigns, thanks to our rigged and decrepit system of governance that means political parties do not get their hands on the public cash in proportion to their share of the popular vote, until after the vote count has been determined at each election.

For a political leader to promise not to foist a predatory bankster scam on the public, and then do it, is an unforgivable crime against basic human decency and integrity, and, an unforgivable violation of public trust.

But to present yourself as a saviour, and plead for our vote with a promise to fight a predatory bankster scam, only to weasel out of actually doing anything to fight it once elected, is, in the firm opinion of this citizen blogger, a far worse crime.

Indeed, I would go so far as to say that on this issue, Julia Gillard is arguably one rung higher from the bottom of the rancid sewer that is politicians’ “integrity”, than Barry O’Farrell, Campbell Newman, and any other politician who has deceitfully gained political capital by falsely presenting themselves as an opponent of and a fighter against the banksters’ CO2 derivatives scam.

UPDATE:

Speaking of constitutional expert Greg Craven, here’s an excerpt from a column he has written for The Australian today –

“MEAN” is never a good word. There are mean dogs, mean great-aunts and mean parking inspectors. They all bite professionally, and enjoy their work.

Right now, there is a mean electorate out there. People have never liked politicians. But this is the first time that the popular mood has graduated from profound disdain to frank sadism.

Take X-rated state election results. Kristina Keneally was the bad premier of a bad government, but the last act of public vengeance rivalling her defeat was the destruction of Sodom and Gomorrah. Anna Bligh was the fairish premier of a decrepit government, but she copped worse.

Federally, in terms of a normal electoral cycle, the Gillard government should now be contemplating whether a third term will be merely tough or downright heroic. Instead, ministers stockpile cyanide pills along with press releases.

It is easy to dismiss all this as the result of poor leadership, bad policy and weak personal hygiene. But the reality is that Australian politicians everywhere are now faced with a terminally jaded electorate, less inclined to pass judgment than automatic sentence of death…

#^&%(^$! oath.

UPDATE:

By Abbott’s own words, Liberal Party premier of NSW Barry O’Farrell and Liberal party premier of QLD Campbell Newman stand condemned.

From the Brisbane Times:

When quizzed on his personal integrity, Mr Abbott said he had strived throughout his two decades in politics to be authentic, and that people should never allow things within their control to break their promises.

Challenging the CO2 derivatives scam in the High Court is well within the control of the State premiers.

Yet they have brazenly broken their pre-election promises to the electorate.

Despicable scum.

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“Quite Obviously, Banks Are Going To Love This”

31 Oct

Barnaby railed brilliantly against the Clean Energy legislation in the Senate today.

Truth embracers … please enjoy (my emphasis added):

Senator JOYCE (Queensland—Leader of The Nationals in the Senate) (12:17):  I think it is important to start by saying that the climate change debate is an ongoing debate. One moment ago we had the argument about caution, and I accept that, but to say that everything is concluded is ridiculous. That should not be accepted, and to start off I would like to quote Professor Judith Curry, who has put out a paper recently saying that, although carbon dioxide levels are rising—she does not refute that—the temperature is not following the same path and whatever is driving issues pertaining to temperature rise it is not, to her mind as someone with immense experience in this field, being driven in the form of carbon dioxide, as others presume it is. Also, I would like to look at other issues such as those in the latest work by Donna Laframboise, who has clearly pointed out—and I think this is important—that a third of the so-called ‘peer reviewed sources’ from the IPCC have not actually been peer reviewed. These sorts of issues need to be put on the table because people are getting away with making categorical statements that are not actually correct.

It is also very important to put on the record that those with a strong interest in a financial and pecuniary gain from a carbon trading permit system have been the greatest advocates of it. Quite obviously, banks are going to love this. Big banks are about to get a big bonus, a massive bonus, because they have the capacity to collect commission from trading permits. So this is a big bank bonus that people are going to have to pay. When they say, ‘Oh, it’s only the major emitters who have to pay this,’ there is an assumption that they absorb the costs. But they do not and they pass the costs down by the powerline to every house in Australia, so through the skirting boards of every house every person pays for this. They pay for it through every fashion and through every mechanism of their life, from when they heat their house during winter and when they cool their house during summer and when they cook their dinner and when they vacuum their carpet to when they watch television. No matter what they do this new broad based consumption tax will be collecting money from them.

This is a broad based consumption tax for which we have something that is completely new in this country, a mechanism to put up tax without it ever going through the parliament, so without it ever going through both houses of parliament. That is something that I never thought we would be voting for. The Climate Change Authority will just say that in their war against the climate—and these people are always warring against people and things—they have to take more action, so they will make a recommendation which becomes a regulatory instrument—that means it does not have to be voted on—and they will just jack up the tax rate. And where do they want to take the tax rate to? It will be for an 80 per cent reduction in emissions. It takes you back to the levels we were at in 1910, so you would have come to here on a horse! How are we going to have an economy then? That is $131 a tonne. We are starting at $23 a tonne and it goes up to $131 a tonne. What works? Where will we be? What we are doing to our nation with this is just so insane. This is the most peculiar thing that I have ever seen. Why? Because you have got a choice. You can have cheap wages or cheap power if you want to be on the manufacturing side of production in a global economy where they move products around. So if you say, ‘I’m going to have dear power,’ are you going to have cheap wages or are you going to shut the show down? They talk about green jobs. Where are they? Where are these mythical green jobs that are going to come over the horizon? Where are these jobs? Where are they right now?

Are you relying on this? Are you going to take the person who is on a substantial income? There are only two types of jobs in this world. There are jobs that pay well and jobs that pay very, very badly, and where you are going to end up now is with the jobs that pay very, very badly.

It is the most annoying thing. When I think about the metaphors from the past weekend the first vision will be flying down here on a Virgin airliner and seeing all the Qantas planes parked on the tarmac and becoming new homes for swallows because apparently we can cool the climate but we cannot actually manage to keep planes in the air. The second will be us debating a mechanism in this chamber by which, apparently, single-handedly we can change the temperature of the globe from a room in this building. And the final vision will be one of Kevin Rudd dancing in Perth. This is the manic, mad world that we have now arrived in. This is it.

The Greens, to their credit, have taken over the show. They are driving the agenda. They have said, to quote Senator Milne: ‘This is the beginning of a new wave of thinking’, and it is—their thinking. They are running the show. That is the new wave of thinking. It is completely naive, and in some instances the reality of what happens to our country and where the semblances of power will be moved to will be almost sinister.

I have just listened to them discussing a four-degree temperature increase. That is very similar to what Peter Garrett said when he was talking about six-metre sea rises by the end of the century. Six metres! Even the IPCC says that at best it could be 60 centimetres. This is always their way. First of all, make you fear; make fear and loathing. Make you scared. Make you upset—impending doom. Then moralise: ‘We mustn’t have this. We must moralise. You must be better than that. You must be righteous. You must be good.’ Then there is the third part of it. The third in the troika of course is to create the mechanism behind it. To feel good, to be righteous, to stop all these terrible things happening, you must have a new tax. A new tax will absolve you of all your sins. A new tax in this Greens confessional will make you righteous, like them. A new tax will allow you once more to assuage your guilt and you will now be an honourable person.

But whenever we take them to the prickly issue of how much this tax is going to cool the temperature of the globe, obviously the answer is nothing. Not one person, not the most ardent supporter of global warming, says that this tax will do anything. It does nothing to change the temperature of the globe. It is merely a gesture. And the inconvenient truth is this: they never admit that this does nothing to actually change the climate. It will most definitely make you poorer. It will most definitely put manufacturing out of production. It will most definitely change the whole scale of the social dynamic and where the power is situated. It will most definitely bring in a new tax that does not need to go through the parliament. But it is not going to affect the temperature.

If we had a tax on malaria, as mad as that is it would actually cure people of malaria. It would actually save someone’s life. If we had a tax on polio we could actually do something. As mad as it is, you could actually do something. But we have a tax that does nothing; it just makes you poorer. Again, you will be sending $56.9 billion a year overseas to buy carbon permits—$56.9 billion to Prince Umfufu from western Nigeria. If you just send him your bank account details he will send you some carbon permits. It will be the greatest scam on earth. Even by 2020, it will be $3.2 billion a year. I want you to ponder on what you could buy with $56.9 billion a year, the roads you could fix for $56.9 billion a year. This is the greatest social engineering exercise and it goes beyond social engineering just in our own country. This is the divesting of the wealth of the Australian people to send overseas, and we are just sitting back.

It is going to happen because Mr Windsor did a deal with the Labor Party and there are ramifications of that deal. I will go through the document. You have to understand that in the legislation the government are talking at times about sending people to jail for 10 years for breaches. They do not care about it. This is the new insane world, the world where the Greens now bring in the guillotine and do not give you leave to speak. They are now also bringing about a whole new sort of world. There are real ramifications for people in this legislation. People will be dealing in something that formerly was free. A colourless odourless gas that you are all breathing now and that was formerly free is now going to be something that is monitored, checked and charged for, and if you do not do the right thing they can send you to jail. Why are you letting them do that to your country? It is just the most peculiar thing that we have sat back idly and let this happen. It has become enmeshed. Everything that was formerly free that was given to people by nature, by God, by whatever blows your hair back that you think is associated with you, they are now charging you for. Vegetation is now owned by the state. Water is now owned by the state. And now you have the ownership of air; it is now owned by the state. Why are we doing this to our country? What is the purpose of all this? Why are we getting sucked into this?

By 2050 how much this will affect the Australian economy is equivalent to the size of the Australian economy now. By their own modelling, we will go back from our opportunity size by what the actual size of our economy is at the moment. So when you go out the door and look around and say, ‘This is the size of the economy’, that is how much you are going to compromise for something that is not actually going to fix the temperature of the globe. What does this affect? Let us just look at this building. It is going to affect steel. We will really struggle to compete and have a steel industry in our nation. People say, ‘I believe in manufacturing.’ If you believe in manufacturing, why would you bring in a tax against one of the most vital inputs? Underneath us is concrete. This will destroy the concrete industry; we will not have a concrete industry. Things were brought here on trucks. I know the TWU brought these seats here. I know that Senator Sterle brought these seats here. It is on transport. It is on the transport of things to here.

You say, ‘It’s not on agriculture.’ Yes, it is. It is on fertiliser. It is on power. It is on wire. It is on steel. It is on everything. And, ultimately, it can come in on agriculture. It said so in the document itself.

Why on earth are we doing this to ourselves? To be honest, I think this has been a great mechanism by the left wing, led by the Australian Greens, to bring in a sense of guilt and then behind that guilt place the new agenda of where they want things to go. There are contrarian views out there. There is a massive number of contrarian views out there by reputable people such as Professor Judith Curry and even by one of the lead scientists for the IPCC, Professor John Christy. He is an atmospheric scientist. He is a person who actually studies the atmosphere. He said, ‘Yes, the world is warming but not nearly as much as we thought it was initially, and there is nothing you can do about it.’ Certainly in Australia there is nothing we can do about it—but we just ignore that.

So what is the purpose of this tax? What is the purpose of this social re-engineering exercise? Let me go back to the issue of democratic right—the right of the Australian people. The Australian people said that they did not want this tax. Other people might have said that they wanted it; however, you must respect the right of the Australian people. If an election means anything, then one of the warrants that you give on your formative policy positions should be respected. You have to stand behind it, otherwise the whole purpose of politics and what people say to you behind a camera on election night is a farce. It means that you cannot believe anything. You might say, ‘I believe in global warming’—sobeit. But the issue is that, if a person makes a promise, if they make a statement, you expect as a matter of honour that that office is respected and they keep their word, because if they do not keep their word then you cannot trust anything that is said here. It all becomes irrelevant. Why did we let our nation get to a point where we just basically allowed somebody to say something and then completely and utterly abscond from their promise? Why was their absconding from that promise then endorsed by the Greens and by others? Why would we do that? It makes the whole position farcical.

Australia, by the way, is not actually going to reduce carbon emissions with this tax. We will just end up buying credits from overseas. The carbon credit market is one of the most volatile in the world. It is the worst investment situation you could ever put yourself in. What are we putting in there? We are putting our whole nation in there.

The government says that without this tax you will not have certainty. I will give you a classic example of certainty, and here are two arguments for it. I am certain that under a coalition government the price of carbon permits in 10 years time will be zero, because they will not be there. The price will be zero. You can plan on that with absolute certainty under a coalition government. Pick any one of those who support this tax and ask: ‘What will the price on carbon be in 10 years time? What will its price be in eight years time? Yet a certain group of people say that this is their argument for certainty. I think it is the most uncertain thing we could ever be involved with. How are we going to manage this? Who are the arbiters? The arbiters on how long you can be sent to jail if you get it wrong are all in here. And for what? We will be sending people to jail for something that was formerly free, that was just there, that was just part of it. No-one ever thought that breathing in and breathing out had an implicit cost. They have not decided at this point in time to charge for it, but they were thinking about charging for animals on farms. Do not think it is not beyond them. They were thinking about that. They pushed away from it. They were going to start charging for cows and sheep. These are the same people who believe that cows, sheep and people are all sort of equivalent. So I suppose it makes sense in the long course of things that you would have to start charging people. Every time you breathe in, as Senator Williams will tell you, that is 386 parts per million of carbon dioxide, and every time you breathe out it is 40,000 parts per million. There must be an implicit cost there. You are not morally righteous: you are warming the globe as you breathe. This is absolutely and utterly absurd.

Of course, it is worse for regional Australia because the further you go the more for transport you pay: the greater the distance, the higher the cost. Electricity in the regions will also be at a higher cost. For what? So that we can assuage the moral righteousness of a certain group of people who, by making you feel guilty, have now managed to manufacture a tax and enmesh it in every corner of your life. Unfortunately, a lot of people have been gullible and have swallowed it.

I would say that always the first job of the fourth estate is to be sceptical. What is the crime of scepticism? The job of the fourth estate is to be sceptical. One of the philosophical virtues of the fourth estate is its scepticism. We do not need a fourth estate if people are not sceptical. If people just take whatever we say as the truth, scepticism is purposeless. I get terribly annoyed when it is said that a certain media house is not complying with an edict given to them by the Labor Party and the Greens—the fourth estate dare be sceptical; they dare to question. Of course they have to question. That is their job. But the more questions that are asked, the more answers we seem not to be provided with.

We are going down this absolutely manic path at a time of total and utter economic uncertainty and when really the only thing we should be focusing on is how we quarantine ourselves from the turmoil of Europe. We know that Europe is just another report away from another market fluctuation and a downturn. How do we quarantine ourselves from the loss of manufacturing jobs to South-East Asia? How do we quarantine ourselves from the exposures that we are currently creating? What are we doing that is prudent? What are we doing that is actually putting our nation in a strong place? Are we being conservative and provident, or are we on a frolic that is highly dangerous. Is it something that we can rewind from? I might remind you that last week the government extended the debt by $200 million on Friday and then on Sunday they just flicked in, under ‘Australian government securities outstanding’, another $1.7 billion.

We are now at $215-plus billion in gross debt. Our ceiling is $250 billion. We have just extended our ceiling because we bashed through it, otherwise the whole place would have shut down when we got to the limit of our overdraft. Now we are only $35 billion from the next ceiling and we are borrowing about $2 billion a week. If they do not extend the ceiling, we have got big problems. In an environment like that I would not be going down the path of a carbon tax. I would be doing everything in my power to try and make the business as strong as possible. I would be doing everything in my power to make sure we have the money in the future to support hospitals, to support manufacturing jobs and to support agriculture. I would be doing everything to batten down the hatches. If we go down this path, we are doing everything in our power to make the future of our nation a very scary place.

Barnaby is right.

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Trading Carbon Permits Is “The Greatest Scam On Earth”

31 Oct

From the Sydney Morning Herald:

Debate on the government’s carbon tax has got off to a spluttering start in the Senate.

A package of 19 bills is being considered by the upper house for the first time, following its approval by the House of Representatives this month.

As debate was due to start today, Opposition senate leader Eric Abetz moved to suspend standing orders to allow debate of a motion aimed at delaying consideration of the bills until after the next election.

The Australian people were entitled to a say because the government had been “grossly misleading” by stating there would be no carbon tax before the 2010 election, he said.

Labor and the Australian Greens used their numbers to defeat the motion 35-31.

It is crystal clear then.

Labor and the Greens do not believe in heeding the will of the voters.

Understandable really.

Because both parties are party to “the greatest scam on earth”:

Nationals senate leader Barnaby Joyce predicted the carbon price would be worth nothing within 10 years.

“Because they won’t be there,” he told Parliament.

“You can bank on that with absolute certainty under a Coalition government.”

Senator Joyce also described the trading of carbon permits as “the greatest scam on earth”.

Indeed.

As we have seen in previous posts, carbon “permits” do not even exist.

They are nothing more than numbers. Electronic digits, in the government’s Australian National Registry Of Emissions Units computer:

Division 2—Issue of carbon units

94 Issue of carbon units

The Regulator may, on behalf of the Commonwealth, issue units, to be known as carbon units.

95 Identification number

A carbon unit is to be identified by a unique number, to be known as the identification number of the unit.

98 How carbon units are to be issued

(1) The Regulator is to issue a carbon unit to a person by making an entry for the unit in a Registry account kept by the person.

(2) An entry for a carbon unit in a Registry account is to consist of the identification number of the unit.

(3) The Regulator must not issue a carbon unit to a person unless the person has a Registry account.

There you have it, dear reader. From the government’s own Bill, now before the Senate.

There is no such thing as a physical carbon “permit”. No printed bits of paper.

Just electronic digits.

I wonder, will the Regulator and/or their staff manually type up the 15 million Identification numbers that constitute each of the carbon “units” to be issued each financial year?:

101 Limit on issue of carbon units

(1) The Regulator must ensure that not more than 15 million carbon units with a particular vintage year are issued as a result of auctions that were conducted by the Regulator during a financial year …

No chance.

It will all be done automatically:

296 Computerised decision‑making

(1) The Regulator may, by instrument in writing, arrange for the use, under the Regulator’s control, of computer programs for any purposes for which the Regulator may, or must, under this Act or the regulations:

(a) make a decision; or

(b) exercise any power or comply with any obligation; or

(c) do anything else related to making a decision or exercising a power or complying with an obligation.

These computer-generated numbers – 15 million of them per year – will have a “value” in dollars.

Because the government says so … in their new laws passed in the Parliament.

The Clean Energy Act 2011 demonstrates that the ALP and the Greens are playing their part in “the greatest scam on earth”.

Barnaby is right.

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Right On Our Side

7 Oct

Yes, there’s a reason why recent posting has been light here on barnabyisright.

Right On Our Side.

It’s a movement. You should join it.

Especially if you want to do something simple to help stop the carbon tax.

If you are one of the hundreds of readers who signed the submission to the Joint Select Committee, please visit the new site… copy the Sample letter … and inform your MP exactly what is Your Will immediately.

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“The Biggest Scam This Nation Has Ever Had Concocted On Them”

25 Sep

Barnaby Joyce speaks truth-to-power in the Senate on the Green-Labor “carbon tax” bills.

Unmissable –

 

Barnaby for President.

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So You Don’t Think This Is A “Fix”?

21 Sep

BREAKING:

Coalition MPs’ fury over the release of new carbon tax analysis

The release of fresh modelling has sparked uproar during a committee hearing on Labor’s carbon tax bills, with Coalition MPs angry that Treasury analysis was released just minutes before the inquiry convened…

Labor released its updated modelling at 9.09am this morning, just six minutes before the commencement of the joint select committee into the government’s carbon tax bills.

The modelling looks at the impact of Labor’s proposed $23-a-tonne carbon price, following previous studies which used a $20-a-tonne price.

“As expected, the updated modelling shows almost no difference with the previous modelling exercise,” Treasurer Wayne Swan and Climate Change Minister Greg Combet said in a joint statement.

Hmmmm.

The public is given less than a week to review 1,100 pages of legislation, and make submissions to the Joint Select Committee.

The Treasury modelling used as the basis for economic argument supporting the legislation’s rationale, is withheld.

Revised modelling at the true set price is released 6 minutes before Treasury appears to face Parliamentary scrutiny.

And a 15% difference (increase) between the previously modelled price, and the actual price, will make “almost no difference”.

Riiiiiiigggght.

If you believe that, then you’re clearly a Blind Man, and I’ve got a wedding ring to sell you … that’s actually a rat’s arsehole.

A fitting metaphor for this government.

 

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The Carbon Pricing Scheme Is Unconstitutional

3 Aug

* 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.

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