Tag Archives: IPA

Here Is Expert Legal Advice On Why The Carbon Tax Is Unconstitutional

13 Apr

Courtesy of the IPA, here is the Short Form of barrister Bryan Pape’s commissioned legal advice on a constitutional challenge to the Bankster-Green-Labor CO2 derivatives scam:

Click to enlarge

Click to enlarge

Will a Liberal State government challenge the legislation in the High Court, thus making good on their pre-election promises?

Will National Living Treasure Clive Palmer make good on his threat to do so?

In the case of the former, there is no excuse for failing to challenge.


So naturally, I suspect that they won’t.

Because as we have seen previously, Australia is a kleptocracy … ruled by banksters.

And it is banksters (and their economist cheerleaders) who want a new global casino in unlimited, unregulated, unmonitored, CO2 derivatives trading.

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.

The “Carbon Tax” Is NOT A Tax … It Is The Bankers’ CPRS By Another Name

27 Jun

Apologies in advance for any underlying tone of anger / frustration here.

I’ve decided to post on this topic after yet again fruitlessly debating with someone – a prominent conservative public “think tank” figure who should know better – who (like most Aussies) has swallowed the line that our government is introducing a carbon dioxide “tax”.

It is not. Ok?

It is NOT a #&^%! “tax”.

It is something far more insidious than merely a simple “tax” … something that you are hoping could easily be repealed one day.

But hey, don’t take my word for it.

Here’s Julian Turecek of Cleantech Ventures, writing for MacroBusiness in May 2011 (emphasis added):

The current government has not yet give its policy a formal name. So the Opposition has obliged* and chosen one for them: a carbon tax.

Now this has got a lot of people, mainly tax advisers and accountants, barking up the wrong tree. It’s not actually a tax…

The current proposal is not a tax, but a fixed price emissions trading scheme. This is exactly the same as the CPRS, which also had a fixed price at the start.

[* Think back carefully. When Gillard announced that she would introduce a “price on carbon” after all, she and the government initially denied the Opposition’s “great big new tax” claim. But they have since allowed, and encouraged, this false meme to become entrenched into the public psyche. I believe that is because calling it a “tax” sounds more simple and less threatening, and does not so clearly highlight the banker-driven “trading” aspect if they had instead called it what it is, and always was ultimately intended to be right from the beginning … an Emissions Trading Scheme.]

Do you need something more formal and “official” than the word of an investment fund manager for “clean energy” technology?

Then read the final Garnaut Review, Chapter 5 (emphasis added):

In implementing an emissions trading scheme with a fixed-price start, there are two sets of decisions to be made: the starting price and how much the price will rise in each subsequent year; and the timing, conditions and manner of transition to emissions trading with a price that is set by market exchange.

Garnaut makes it crystal clear. It is an emissions trading scheme with a fixed price start.

Need more?

Carefully read the government’s own website on the topic (emphasis added):

Broad architecture of the carbon price mechanism

A carbon price mechanism could commence with a fixed price (through the issuance of fixed price units within an emissions trading scheme) before converting to a cap-and-trade emissions trading scheme…

Now sit up and take notice.  The following is very important, if you are going to get your head around why this is NOT a tax, and why allowing it be called that in public discourse (but not in the official documents) is a very sneaky, very deceitful way of relabelling what is exactly the same policy.

Note carefully what it says under Transition Arrangements (emphasis added):

Transition Arrangements

At the end of the fixed price period, the clear intent would be that the scheme convert to a flexible price cap-and-trade emissions trading scheme. In relation to the transition to a flexible price, it would be important to design the arrangements so as to promote business certainty and a smooth transition from the fixed to flexible price.

Ross Garnaut also reiterates the importance of the initial design promoting a “smooth transition” to a fully-floating price ETS, in his final Garnaut Review:

Investors need clarity about when and the conditions under which the transition to a floating price will occur. To support a smooth transition, the necessary institutions and supporting infrastructure should be established from the beginning of the scheme. It is important to specify rules for the scheme as soon as possible, including arrangements for auctioning permits and for acceptance of offsets and international permits.


So, how exactly do you design a scheme to promote a “smooth transition”?

By giving those initial “fixed price” permits an expiry date that is far enough away to ensure that they can be traded when the emissions trading scheme transitions to a “floating” price. In this way, the “property rights” of those forced to purchase the initial “fixed” (and rising over “3-5 years”) price permits are safeguarded (ie, thus, “business certainty”) – they can “bank” their permits and trade them later, when the transition to a floating price occurs.

Of course, an even simpler way would be to give these permits to “pollute” an unlimited expiry date.

Which is exactly what the government’s official Policy position was under the original Rudd-Garnaut CPRS White Paper.  Which the Gillard-Garnaut “carbon pricing” mechanism aims to replicate – because that is what the bankers want (emphasis added):

Policy position 8.1

Each permit will have a unique identification number and will be marked with the first year in which it can validly be surrendered (its ‘vintage’). It will not have an expiry date.

8.4.1 Banking

Banking allows permits to be saved for use in future years. With unlimited banking, permits would not have an expiry date—once issued, they could be used for compliance at any future time.

… the advantages of banking are greatest if banking is continuous. For these reasons, the Government will allow unlimited banking from Scheme commencement.

To all those who continue to parrot the party line that what our government is proposing is a “tax” … you are wrong.

You have been hoodwinked.

In calling it a “tax”, you are focussing on unimportant details of the initial “fixed price” period, and failing to see the end game. The Big Picture.

The Government’s plan has never changed.  They have always been pursuing a CPRS – an emissions trading scheme – with an initial fixed price period.

It’s the thin end of the carbon-trading global banksters’ wedge.

So if you still think it is just a “tax”, then you have just bent over, grabbed your ankles, and taken the thin end right up your @$$.

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