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Thursday, February 07, 2013:

If Abbott is right, the federal tax system is unconstitutional

By Gavin R. Putland *

Under s.51(ii) and s.99 of the Constitution, the Commonwealth can't discriminate between States or parts of States in tax policy. But it can discriminate between Territories or parts of Territories, or between States and Territories.

So an Abbott government wouldn't be able to grant tax concessions to Cairns (Qld) or Karratha (WA). But it would be able to grant concessions to the entire Northern Territory or any part thereof.

More generally, a reformist Federal government could impose a completely different tax regime on the NT, not only with a view to encouraging development in the NT, but also with a view to using the NT as a proving ground for radical tax policies, in order to discredit the scare campaigns that would otherwise prevent those policies from being introduced nationwide.

After the 2030 Vision was leaked, Abbott said “it would be unconstitutional to civilly conscript public servants”. The only reference to civil conscription in the Constitution is in s.51(xxiiiA), by which the Federal Parliament can legislate with respect to “...medical and dental services (but not so as to authorize any form of civil conscription)”.

So Abbott evidently believes that the protection against civil conscription is not limited to doctors and dentists. I agree. The more likely interpretation of the parenthesized words is that they uphold a more general implied prohibition of civil conscription, but are included in connection with medical and dental services because these are the only items in s.51(xxiiiA) for which the possibility of civil conscription might otherwise arise. That interpretation would agree with the opinion of Justice Murphy in General Practitioners Society v. Commonwealth (145 CLR 532, 1980).

But if Abbott is right, how can it be constitutional to civilly conscript business operators to collect GST from their customers, or personal income tax from their employees? Clearly it can't — at least if the conscripts are not compensated for the breach.


* Comment on “Dear Leader decrees northern happiness”, MacroBusiness, Feb.7, 2013. Originally headed “Constitutional issues in Abbott's 2030 Vision”. Reposted with additional links Feb.10, 2013. See also “Whether Section 82 of the Australian Constitution means what it says” and “Is the GST unconstitutional?

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