Tag Archives: s.55

Campbell Newman Does A Barry

28 Mar

Click to enlarge

NSW Election Campaign. February 24, 2011.

Barry O’Farrell:

“I don’t support a carbon tax, the Premier does,” Mr O’Farrell said.

“The premier’s advisers say carbon taxes will cost families another $500 a year on their power bills.

“I don’t think that’s affordable.

“If you’re talking about reducing the cost of living pressures you can’t support a carbon tax.

“I won’t and I’ll go to Canberra to argue that point if I’m elected premier.”

…

[Mr O’Farrell] called on voters to voice their anger when they vote, saying a new coalition government would “send a shiver up the spine of every federal ALP backbencher sitting in a marginal seat”.

“The coming poll is the only opportunity that families and small businesses have across NSW to try and stop this carbon tax dead,” Mr O’Farrell said on Friday.

QLD Election Campaign. February 24, 2012.

Campbell Newman:

The carbon tax is bad for Queensland. It’s bad for jobs. Frankly, if the carbon tax is introduced it will make it even harder for us to achieve our four per cent target. But that’s why I’m here today, to say that we will fight every single day, if we’re elected, as the Government of Queensland, to fight against this tax; that even if the tax is introduced, we will work with Tony Abbott and state premiers to fight the tax still.

We hope that Queenslanders will see the opportunity in this election campaign, but particularly on the 24th of March, to send a signal to Labor – who are so caught up in their own activities and their battles at the moment – send a signal to Canberra, to Labor that you don’t want the carbon tax and that’s why people have on the 24th of March an opportunity to actually send that signal to vote against a carbon tax.

Both Barry O’Farrell and Campbell Newman made clear promises during their election campaigns, to fight against the carbon tax.

Numerous constitutional experts have said that the carbon tax legislation can be challenged in the High Court, ideally by the States, under section 114 of the Constitution (amongst others).

Many NSW voters, including this blogger, have petitioned Barry O’Farrell to action this, and make good on his campaign promise. To the best of my knowledge, there has been no further response from Premier O’Farrell.

Nothing … zip … nada … has actually been done to “fight” the carbon tax, by any Liberal-National State Government (NSW, VIC, WA, and now QLD).

It appears that Premier O’Farrell is as untrustworthy as Julia Gillard.

Promise one thing before the election.

Do the opposite after the election.

Queensland’s new Premier Newman made an identical promise before the election.

Will he now “do a Barry” after the election?

* I urge Queenslanders to directly petition their local MP, and Premier Newman, informing them of Your Will that the new Queensland State Government should challenge the carbon tax in the High Court. You can use the sample petition below:

Dear [insert State MP’s Name],

I know that it is my duty to keep you informed of MY WILL on anything that comes before Parliament, or that should come before Parliament.

My communication to you concerns the [insert State name] State Government budget, and possible impacts on the budget arising from the Commonwealth’s Clean Energy Future legislation.

Constitutional barrister Bryan Pape and other legal experts are on public record indicating that the [insert State name] State government has grounds to challenge the Commonwealth government’s Clean Energy Future legislation, under section 114 of the Australian Constitution.

IT IS MY WILL that you take immediate action to cause the [insert State name] State government to challenge the constitutionality of the Commonwealth’s Clean Energy Future 2011 (ie, carbon tax) bills in the High Court.

Yours faithfully,

[signed]

[insert your full name, address, and date, as legal evidence that you are a constituent.]

Details for contacting your State government Premier and local State MP’s below:

QLD

NSW

VIC

WA

SA

TAS

NT

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The Simple Way To Tell That The Mining Tax And Carbon Tax Are Unconstitutional

22 Mar

“By their words you shall know them.”

What is the biggest red flag alerting you to the likelihood that a government bill is unconstitutional?

When the wording of a government bill repeatedly insists that it is in compliance with a section of the Constitution.

Or, when the bill repeatedly insists that it does not do something, or is not something, that would constitute a breach of the Constitution.

Because if it were in keeping with the Constitution, then there would be no need whatsoever to say anything.

This is not just the rational surmising of your humble blogger.

A constitutional law expert agrees.

From Yahoo!7 News (emphasis added):

Government facing mining tax revolt

… [Macquarie University’s] Dr [Margaret] Kelly not only thinks Fortescue will get a hearing but that it has a decent shot at winning the case.

“Given the shortness of the Act, the lack of definitions in the Act, and the very general nature of the Act, then I, if I were the Commonwealth, wouldn’t be as hopeful as apparently the Prime Minister currently is,” she said.

She says challenges made under section 114 of the Constitution would attract serious consideration by the High Court.

“The fact that each of these acts purports to say the Act does not impose a tax on the property of the states, I think, quite clearly raises that question unambiguously.

“The acts in their various forms also raise the question of, is this really a tax as opposed to being, as I say, a pecuniary penalty or some kind of fee?

“That too is a constitutional question.”

Dr Kelly is right.

In the 425 page (!?!) Explanatory Memorandum to the 288 page Minerals Resource Rent Tax Bill 2011, we find the following (emphasis added):

Imposing the MRRT

3.31    The MRRT is imposed by three different imposition Bills. One imposes MRRT to the extent that it is a duty of customs [section 3, MRRT customs imposition Bill]; one imposes MRRT to the extent that it is a duty of excise [section 3, MRRT excise imposition Bill]; and one imposes MRRT to the extent that it is neither a duty of customs nor one of excise [section 3, MRRT general imposition Bill]. This reflects the constitutional requirement that laws imposing duties of customs shall deal only with duties of customs and that laws imposing duties of excise shall deal only with duties of excise (see section 55 of the Constitution). However, there is only one assessment Act.

“This reflects the constitutional requirement” does it?  Utter bollocks!  What it “reflects”, is Australian governments’ now standard method of circumventing the clear wording and plainly obvious intent of the authors of the Constitution. I for one have no doubt whatsoever that when the authors of our Constitution wrote section 55, they certainly did NOT do so with the intent that every new tax, customs duty, or excise duty, should require the separate drafting and passage through both houses of Parliament of multiple, interdependent but at the same time, mutually-contradictory bills defining the new impost as being (1) not a tax, (2) a duty of customs, (3) a duty of excise, and (4) neither a duty of customs nor a duty of excise. To suggest otherwise is risible, and would be to assume that the authors of the Constitution wanted to make it as complicated and difficult as possible for government to impose genuine taxes, customs duties, and excise duties. No dear reader – the true reason why Australian governments (both “sides”) use this multiple interdependent but mutually-contradictory bills technique, is plainly obvious: their new imposts are not taxes, customs duties, or excise duties. They are unconstitutional money grabs … and they know it.

3.33    MRRT is not imposed on property belonging to a State. That ensures that the MRRT complies with section 114 of the Constitution, which prohibits the Commonwealth from imposing a tax on any kind of property of a State. In practice, this will only have an effect to the extent that a State mines its own taxable resources. In that case, the State will not be subject to MRRT.

Sorry BrownGilSwan.

Sorry Big Three multinational mining oligopoly PM-removers and tax-dodge designers.

Your saying so, does not make it so.

Indeed, the opposite is true.

Your saying so, almost certainly makes it not so.

Previously, we have seen exactly the same blatant Constitution-sidestepping ruse used in the 19 different bills and 1,000+ pages of the Clean Energy Future 2011 legislation:

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.

Compare …

Clean Energy (Charges – Excise) Act 2011

A Bill for an Act to impose charges associated with the Clean Energy Act 2011, so far as those charges are duties of excise

And compare …

Clean Energy (Unit Issue Charge – General) Act 2011

A Bill for an Act to impose charges associated with the Clean Energy Act 2011, so far as those charges are not duties of excise

The government’s bills for the mining tax, and the carbon tax, are not unlike a spoilt domineering child trying to get its own way.

Fingers inserted in ears.

Eyes screwed tightly shut.

And insisting, “It IS it IS it IS it IS it IS!”

Or, “It’s NOT it’s NOT it’s NOT it’s NOT it’s NOT!”

Basic rule of life, dear reader.

Listen very, very carefully to a government’s words.

Then ask yourself, “What is the opposite of what they have said?”

The opposite, is far more likely to be the truth.

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Conversations With The Constitution

21 Mar

Sometime in 2004, your humble blogger was waiting for a flight at Melbourne airport and went in search of something interesting to read.

Leading constitutional law expert Professor Greg Craven‘s cleverly written “Conversations With The Constitution: Not Just A Piece Of Paper” made a long wait for a short flight highly entertaining, frequently amusing, and genuinely enlightening.

Professor Craven has now added his voice to that of constitutional barrister Bryan Pape, and the legal counsels of self-made Aussie miners Clive Palmer and Andrew Forrest, in publicly stating that the Green-Labor government’s mining tax, and carbon tax, are indeed open to challenge as being in breach of the Australian Constitution.

Interestingly, Professor Craven indirectly refers to the very same sections of the Constitution that your humble blogger has long cited as having been deliberately circumvented by the government in legislating their new “taxes” (emphasis added):

Constitutional law expert Greg Craven said it was also likely the MRRT would face twin legal challenges by states and mining companies.

The Australian Catholic University vice-chancellor said the states could challenge the new laws on the grounds that they interfered with resources rights.

A mining company could argue the tax interfered with its property without just terms, he said.

“There are a lot of arguments that could be raised,” he said.

“It’s a little bit like the carbon tax, there are some laws that are born to be challenged because they are so complicated.”

“It is very likely it will end up in court but what will happen there is much more unpredictable.”

Professor Craven said such a legal challenge could potentially take years to resolve.

As we have seen previously (“GilSwan Conned – Mining Tax The Greens’ Pit Of Despair”), the mining tax is a farcical Trojan Horse, designed by the Big 3 multinational miners, for the Big 3 multinational miners, in a secret and corrupt exclusive deal with Gillard and Swan, to increase the Big 3 foreigners’ oligopoly in Australia at the expense of their much smaller, locally-owned competitors.

And of course, regular readers know only too well that the carbon “tax” is nothing of the sort, but is in plain matter of fact another Trojan Horse; it is a CO2 derivatives scam, designed by bankers, for bankers.

Now that both “taxes” have been railroaded into law by the Greens and Labor, it has fallen to Mr Palmer and Mr Forrest to take up the legal fight against these laws, in the national interest:

Billionaire miner Andrew “Twiggy” Forrest says he is close to mounting a legal challenge to the Gillard government’s mining tax.

Mr Forrest said his listed company, Fortescue Metals, was not opposed to paying tax, but the minerals resource rent tax was “poorly designed” and biased against smaller miners.

“The minerals resource rent tax is unfair, narrowly based, complex, inefficient and will reduce investment and future jobs in the Australian mining industry,” a spokesman for Mr Forrest told The Australian Online.

“As Fortescue has previously advised, the company has engaged senior counsel and will commence legal proceedings after the legislation has been enacted and legal opinion has been finalised.”

The Australian Online understands Mr Forrest will urge smaller miners from the Association of Mining and Exploration Companies to join the proceedings.

Mining magnate Clive Palmer, who has vowed a High Court challenge against the government’s carbon tax, is yet to decide whether he wants become involved.

“One person can only do so much at one time,” he told The Australian Online.

“If I thought the mining tax bill was unconstitutional, I would mount a challenge.”

Finance Minister Penny Wong said she believed the mining tax would survive the challenge.

“We have sought legal advice and I am confident the minerals resource rent tax will withstand any challenge,” Senator Wong said.

However, Liberal Senator Mathias Cormann said the tax was likely to be scuttled.

“I have no doubt that Labor’s dodgy mining tax will be thrown out by the High Court just as their dodgy Malaysia people swap deal was thrown out by the High Court,” he said.

We shall see.

I for one have little faith in the wisdom, impartiality, or integrity, of the befrocked, high and mighty, “progressive” “intellectual” lawyers (need I say more?) who have risen above the ranks of their parasitic, ambulance-chasing brethren to preside over Australia’s so-called “justice” system. Like those special turds, that always float to the top.

Nevertheless, we live in hope. It would be very pleasing to see motions of injunction successfully filed against both “taxes”, prohibiting the government from handing out “compensation” payments etc, until after the legal challenge/s have been decided.

Indeed, it would be a sweet, sweet irony if a legal injunction stayed the executioner’s sword being brandished by this government over the economy … just as their 4-years-and-counting delay in the FWA investigation into Labor MP Craig Thomson has stayed the executioner’s sword being brandished by the Australian public over this government.

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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

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

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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.

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