Tag Archives: High Court

A Word Of Encouragement From Barnaby

13 Oct

From Senator Joyce yesterday:

In response to this tweet:

Stay motivated?

And mobilise?

It’s a movement. You should join it.

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Sign The Petition – Carbon Tax High Court Challenge

19 Sep

* The following submission to the Parliament’s Joint Select Committee will be forwarded on Wed 21st Thur 22nd September 2011. Please co-sign in Comments below.

UPDATE: Thank you to all … comments now closed.

The Secretary
Joint Select Committee on Australia’s Clean Energy Future Legislation
Parliament House
CANBERRA ACT 2600
Australia

22 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 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 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,

Colin McKay
Concerned citizen
Registered voter
Electorate of Charlton
PO Box 6018
MOUNT HUTTON NSW 2290
Australia

Michele Kells
Bunbury, WA 6230

Lyndsay Farlow
Port Macquarie, NSW 2444

Jo-Ann Hildebrand
Perth, WA 6000

Meredith Thiessen
Dodges Ferry, TAS 7173

Sean Morrison
Greenacres, SA 5086

Hannah Jorgensen
Biddaddaba, QLD 4275

Colin Ely
Blackburn, VIC 3130

Laurence Wynen
Coffs Harbour, NSW 2450

Chris Foster
Adelaide, SA 5000

Justin Downie
Cooma, NSW 2630

Philip Hingston
Eastwood, NSW 2122

Veronica Sidhu
Camberwell, VIC 3124

Tracey Watts
Brisbane, QLD 4000

David Tan
Rowville, VIC 3178

Patricia Lightfoot
Armidale, NSW 2350

Shirley Cocks
Murray Bridge, SA 5253

Richard Eichhorn
West End, QLD 4101

Mike J Warr
Kirribilli, NSW 2061

Geoff Brown
Ourimbah, NSW 2258

Ben Williamson
Baulkham Hills, NSW 2153

Phil Schultz
Glenwood, NSW 2768

Sonja Schultz
Glenwood, NSW 2768

Phillip Cummings
Neutral Bay, NSW 2089

Neil Wilson
Epping, NSW 2121

Don Anderson
Sydney, NSW 2000

Vince Schultz
Maclean, NSW 2463

JR Edward
Glen Waverley, VIC 3150

Brian Haselum
Maclean, NSW 2463

Anthony Grizaard
Perth, WA 6000

Chris Kauffmann
Sunshine Coast, QLD 4518

Cliff Rogers
Brisbane, QLD 4000

Michael Petterson
Braunstone, NSW 2460

Philip Pitts
Melbourne, Victoria 3004

Philip Slade
Broome, WA 6726

Ess Grubb
Bribie Island, QLD 4507

Thomas Harnell
Fernvale, Qld 4306

Ian Darley
Davidson, NSW 2085

Pamela Davis
Gulgong, NSW 2852

Peter Heuscher
Cooroibah, QLD 4565

Clive Shepherd
Morayfield, QLD 4506

Betty Whiffin
North Turramurra, NSW 2074

Lorraine Tebbutt
Romsey, VIC 3434

Kerry Southerden
Welby, NSW 2575

Adam Davidson
Melbourne, VIC 3004

David Whately
McDowall, QLD 4053

Brian Newell
Bribie Island, QLD 4507

Russell Scott
Collaroy Plateau NSW 2097

Bob Jackson
Waterloo, NSW 2017

Ron Kleinschafer
Northern NSW
New England Electorate

David Cooke
Warradale, SA 5046

Andrew Johnson
Liverpool, NSW 2170

Lesley Brown
Blackett Mt Druitt, NSW 2770

Adrian Day
Blackett Mt Druitt, NSW 2770

Damien Jarman
Templestowe Lower, VIC 3107

Carol Edge.
Hervey Bay, QLD 4655

Robert Peterswald
Hobart, TAS 7000

Scott Hastings,
Tregear, NSW 2770

Anton Hardy
Brisbane, QLD 4000

Bill McAuliffe
Hocking, WA 6065

Stephen Harper
Mt Lawley, WA 6050

Ray Soper
Cammeray, NSW 2062

James Doogue
Leeming, WA 6149

Desmond Cooke
Bonnells Bay, NSW 2264

Val Majkus
Toowoomba, QLD 4350

G.C. Cross
Ulladulla, NSW 2539

Maree Baker
Sydney, NSW 2000

Beryl Raddatz
Brisbane, QLD 4505

Peter Howell
Wantirna, Vic 3150

Milton Collins
Modbury Heights, SA 5092

Tony Mack
Sherwood, Qld 4075

David Cliffe
Bracken Ridge, QLD 4017

Wayne Job
Kilmore, VIC 3764

Mark McGuire
Coolangatta, QLD 4225

Robert Massey
Morayfield, QLD 4506

Thomas Bourke
Cameron Park, NSW 2285

Majella Smith
Nowra, NSW 2541

David Wood
Minyama, QLD 4575

Max Larter
Galong, NSW 2585

Glen Bullen
Broadview, SA 5083

John Warby
Chatswood, NSW 2067

Allan Hinchcliffe
Kempsey, NSW 2440

Greg McGuire
Brisbane QLD 4000

Lisa A Mack
Sherwood, QLD 4075

Liz Penprase
Alexandria, NSW 2015

Margaret Turk
Indooroopilly, QLD 4068

Doug McIntyre
Crookwell, NSW 2583

Stephanie Martin
Beachmere, Qld 4510

Russell Chapman
Mitchelton, QLD 4053

Norma Penny
Wulguru, QLD 4814

Simon Ludborzs
Hewett, SA 5118

Robert J Malloy
Wallsend, NSW 2287

Gordon Hastings
Millswood, SA 5034

Grant Smith
Marangaroo, WA 6064

Steve Herczeg
Duffy, ACT 2611

Matt McLeod
Albion, VIC 3020

John Holliday
Tallai, Qld 4213

Thomas Reid
Brisbane, Qld 4172

Margaret Crooks
Tranmere SA 5073

Kevin Muir
Linley Point 2066

Mark Harries
Kulnura, NSW 2250

Clive Shepherd
Morayfield, QLD 4506

Fiona Meredith
Cygnet, TAS 7112

Nic Meredith
Cygnet, TAS 7112

Tony Fendt
Grange, QLD 4051

Phil West
Tamborine, QLD 4270

Bernd Felsche
Calista, WA 6167

Brett McSweeney
Charlestown, NSW 2290

Paul van der Zel
Castle Hill, NSW 2154

Phil Hopkins
Peregian Beach, QLD 4573

Andrew Young
Creswick, VIC 3363

Michelle Schultz
Glenwood, NSW 2768

Kareem Ah
Brighton VIC 3185

Jim Simpson
Five Dock, NSW 2046

Ian Coleman
Mitcham, VIC 3132

Robert Browne
Aberfoyle Park, SA 5159

Paul Gregory Morrison
Riverview, QLD 4304

Linda Slater
Bayswater, WA 6053

Phillip Bross
Kogarah, NSW 2217

Sharon Brown
Blackett, NSW 2770

John Trigge
Mt Barker, SA 5251

Marek Kiera
Newtown, NSW 2042

Ben Hern
Morphett Vale, SA 5162

Robert Mustac
Alfords Point, NSW 2234

Greg Buchanan
Niagara Park, NSW 2250

Robyn Williams
Burleigh, QLD 4220

M.S. Eggleston
Newcastle, NSW 2300

Jason Rennie
Baulkham Hills, NSW 2153

Merryn Yeo
Melbourne, VIC 3000

P. Rowlinson
Roseville, NSW 2069

Carolyn Lane
Gosford, NSW 2250

Jeff Radcliffe
Speewah, QLD 4881

D. Hill
Newcastle, NSW 2300

*****************

This Is How We Will Stop The Carbon Tax

19 Sep

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
Australia

21 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.

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 MPpwned!

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, climaticallyfutile 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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