No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
“The Senate may not amend any proposed law so as to increase the proposed charge or burden on the people.”
“I confess it came as a surprise to me to find that this House could make a law to shoot dogs, or poison them, or to do anything with them except increase the tax on them half-a-crown.”
This article examines the third paragraph of s 53 from the high ground of history. Section 53 must not be seen as an isolated and unique problem. Rather, it is merely another manifestation of the intractable problem of defining the power to tax. The Bill of Rights, arising out of the Revolution of 1688, defined the constitutional prerogatives of the King, when it provided “[t]hat levying money for or to the use of the Crown, by pretence of prerogative, without grant of Parliament for longer time or in other manner than the same is or shall be granted, is illegal”. Art 1 s 7 of the United States Constitution requires that “[a]ll bills for raising revenue shall originate in the house of representatives; but the Senate may propose or concur with amendments, as on other bills”. Story elegantly under-stated the position when he remarked, “What bills are properly ‘bills for raising revenue’, in the sense of the constitution, has been matter of some discussion”.
1 The third paragraph of section 53 of the Commonwealth Constitution. The full text of s 53 is as follows:
Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.
The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.
The Senate may not amend any proposed law so as to increase the proposed charge or burden on the people.
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.
Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.
2 Hon D Melville, Legislative Council, Explosives Bill 1885 (Vic) Vic PD 1885 Vol xlix at 1492.
3 1 Will & Mary, session 2, c 2. The Act was given this short title by the Short Titles Act 1896 (UK).
4 Story, J, Commentaries on the Constitution of the United States (1st ed 1833) Vol 2 at 342-343Google Scholar.
5 10 Viet, No 5.
6 Castles, A, An Australian Legal History (1982) at 278-280Google Scholar.
7 House of Representatives Standing Committee on Legal and Constitutional Affairs, The Third Paragraph of Section 53 of the Constitution (1995).
8 Ibid at para 3.1.8.
9 (1995) 183 CLR 373 at 482. The High Court may have been mindful of the admonition in Frankfurter J's celebrated dissent in Baker v Carr 369 US 186 at 267 (1962) to avoid “political entanglements ... by abstention from injecting itself into the clash of political forces in political settlements”.
10 This question is posed with awareness as to the difficulties in using historical intention in legal interpretation: Schoff, P, “The High Court and History: It Still Hasn't Found(ed) What It's Looking For” (1994) 5 PLR 253Google Scholar.
11 Standing Committee on Legal and Constitutional Affairs, above n 7 at para 1.3.2.
12 Thirty seven submissions were received prior to the release of the Exposure Draft and 9 submissions were subsequently received. A version of this article was received by the Committee as a comment upon the Exposure Draft.
13 1September 1994.
14 Tabled on 6 March 1995.
15 Public hearings were held in Canberra on 11, 12 and 19 October 1994 and in Perth on 26 October 1994.
16 Standing Committee on Legal and Constitutional Affairs, above n 7 at para 1.5.1. Recommendation 13 is that “there should be a compact between the Houses in relation to the interpretation and application of the provisions of the third paragraph of section 53 of the Constitution”.
17 In a submission to the Committee on 30 March 1995, the Clerk of the Senate, Mr Harry Evans, commented that the recommendations outlined in the Exposure Draft would “significantly alter the legislative balance between the Senate and the government in favour of the latter”.
18 Standing Committee on Legal and Constitutional Affairs, above n 7 at para 5.4.1.
19 Ibid at para 2.2.1.
20 Ibid at para 3.1.4.
21 Ibid at para 3.1.3.
22 It is convenient to define “Appropriation Bills” to encompass those Bills which propose a new appropriation, and those which amend existing appropriations. These may be further divided into “fixed” appropriations which specify the precise amount of expenditure authorised, and “standing” appropriations which are not restricted in their operation to particular year or amount. The term “Expenditure Bill” applies to Bills which, whilst not actually appropriating from Consolidated Revenue, affect the amount which must be expended under an appropriation contained in a separate Act or proposed in another Bill.
23 Standing Committee on Legal and Constitutional Affairs, above n 7 at para 7.7.10. Dennis Rose QC formulated this criticism. The Committee held to its view as “an example of a reasonable practice open to the Houses which is not precluded by the words of section 53” (para 7.8.5).
24 Ibid at section 8.5.
25 Ibid at para 8.9.4.
26 Ibid at para 9.11.2. This conclusion, in truth, concerns the first paragraph of section 53. The Committee acknowledged that its view on the scope of the words “imposing taxation” was contrary to the High Court's view expressed in the context of s 55 cases.
27 Ibid at para 9.15.5.
28 Ibid at para 9.17.3.
29 Hatsell, J, Precedents and Proceedings in the House of Commons (2nd ed 1818) Vol 3 at 153Google Scholar.
30 Bramwell, G, The Manner of Proceeding on Bills in the House of Commons (1833) at 1Google Scholar.
31 Sir Erskine May, Thomas, A Treatise on the Law, Privileges, Proceedings and Usage of Parliament (9th ed 1883) at 537Google Scholar.
32 Nowell, E C, Parliamentary Handbook, Showing the Practice of the English House of Commons in Cases not specially provided for by the Standing Orders of the Legislative Council, Tasmania (1887) at viiiGoogle Scholar.
33 Ibid at 122 (emphasis added).
34 Ibid at 93, 101, 120, 134 and 166.
35 Blackmore, E G, The Decisions of Denison and Brand (1892) at 26Google Scholar. See also Decisions of Peel (1887).
36 Bourinot, J, Parliamentary Procedure and Practice in the Dominion of Canada (1884)Google Scholar.
37 Ibid at 462.
38 This statement applies equally to the framers. Section 49 of the Constitution provides an example. In R v Richards; Ex parte Fitzpatrick and Browne (1955) 52 CLR 157 at 165-166, Dixon CJ stated that: “It is quite incredible that the framers of s 49 were not completely aware of the state of the law in Great Britain and, when they adopted the language of s 49, were not quite conscious of the consequences which followed from it.”
39 A similar provision is.found as Standing Order 1 of the first Commonwealth House of Representatives. H Reps V&P 1901-2, Vol 1 at 1059. The equivalent provision in the Standing Orders of the NSW Legislative Assembly was considered by the Privy Council in Barton v Taylor (1886) 11 App Cas 197.
40 Convention Debates (Sydney 1897) at 475-9.
41 Ibid at 479.
42 Leeming, M, “'Something that Will Appeal to the People at the Hustings': Paragraph 3 of Section 53 of the Constitution” (1995) 6 PLR 131Google Scholar. Arguments were rehearsed on the very first day of sitting of the new Parliament in South Australia on 22 April 1857. The catalyst was the Tonnage Duties Repeal Bill, which had been initiated in the Assembly and returned by the Council to that House with amendments. The problem was temporarily resolved by a series of resolutions which became known as the “1857 Compact” which Leeming establishes as “indisputably the source of par 4 of s 53” (at 145).
43 Nowell, E C, A History of the Relations between the Two Houses of Parliament in Tasmania and South Australia, in regard to amendments to Bills containing provisions relating to the public revenue or expenditure (1890) at 69Google Scholar. See also Castles, A, Castles' Annotated Bibliography of Printed Materials on Australian Law 1788-1900 (1994) at para 1544Google Scholar.
44 E C Nowell, above n 43 at 86 (emphasis in original).
45 Todd, A, Parliamentary Government in the British Colonies (1st ed 1880)Google Scholar.
46 A Todd, ibid (2nd ed 1894) at 710. For criticism of Todd, see EC Nowell, above n 43 at 82-84.
47 A Todd, above n 46 at 709.
48 EC Nowell, above n 43 at appendix D.
49 E C Nowell, above n 43 at 138. Section 33 of the Constitution Act 1854 (Tas) provided that “all Bills for appropriating any part of the revenue, or for imposing any tax, rate, duty, or impost, shall originate in the House of Assembly”. Section 1 of the Constitution Act 1855-6 (SA) is in very similar terms. Section 56 of the Victorian Constitution Act 1855 (Vic) was cast in a different form. It provided that “[a]ll Bills for appropriating any part of the revenue of Victoria, and for imposing any duty rate tax rent return or impost, shall originate in the Assembly, and may be rejected but not altered by the Council”.
50 EC Nowell, above n 43 at 138.
51 Ibid at 139.
52 Griffith, S, Successive Stages of the Constitution of the Commonwealth of Australia (1891) MS Q 198Google Scholar, Dixson Library, CY Reel 221. These provisions conveniently appear in M Leeming, above n 42 at 134.
53 Convention Debates (Sydney 1897) at 489.
54 Jenks, E, The Government of Victoria (Australia) (1891) at 255-258Google Scholar.
55 For the text of s 56, see above n 49.
56 E Jenks, above n 54 at 257
57 Enclosure 1 in Bowen, Governor of Victoria, to Hicks Beach, Secretary of State, 26 Dec 1878 in Manning Clark, Select Documents in Australian History 1851-1900 (1955) at 423.
58 Hearn, W, The Government of England (2nd ed 1886) at 619Google Scholar. The comment forms part of a memorandum, written for the use of members of a Select Committee of the Legislative Council, which considered s 56 in its operation on the Explosives Bill 1885 (Vic).
59 M Leeming, above n 42 at 133.
60 Cth Parl Deb 1903, Vol 14 at 2022.
61 Ibid at 2023.
62 M Leeming, above n 42 at 137-139 persuasively presents an alternative contention that the words applied to Loan Bills.
63 Section 92 cases are a fruitful source for definitions of “fee for service” laws. For example, in Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127 at 179, Dixon CJ, McTiernan and Webb JJ said, “[T]he conception appears to be based on a real distinction between remuneration for the provision of a specific physical service of which particular use is made and a burden placed upon inter-State transportation in aid of the general expenditure of the State”.
64 Convention Debates (Sydney 1891) at 449.
65 Reproduced as an appendix to Bourke, , Decisions of the Right Honourable Charles Lefevre (2nd ed 1857) at 359Google Scholar. The same language was chosen for the first Standing Orders of the Commonwealth House of Representatives: “290. No amendment whereby the charge upon the people will be increased may be made to any such resolution, unless such charge so increased shall not exceed the charge already existing of any Act of the Parliament.”
66 Text accompanying n 33.
67 T E May, above n 31 at 430.
68 E C Nowell, above n 32 at 122.
69 May, T E, Constitutional History of England 1760-1860 (1861) Vol 1 at 476Google Scholar.
70 Hardcastle, H, A Treatise on the Construction and Effect of Statute Law (3rd ed 1901)Google Scholar. Within legislative language and judicial interpretation “charge” and “tax” are undoubtedly interchangeable: Cox v Rabbits (1878) 3 App Cas 473 at 478.
71 Turner, H G, A History of the Colony of Victoria (1904) at 184Google Scholar.
72 Standing Committee on Legal and Constitutional Affairs, above n 7 at para 3.7.2. Emphasis in original.
73 Cth Parl Deb 1903, Vol 14 at 2014.
74 Ibid.
75 Ibid.
76 Ibid at 2015.
77 Ibid at 2015.
78 Ibid at 2016-2019.
79 Bourke, above n 65 at 406. See also TE May, above n 31 at 653.
80 J Bourinot, above n 36 at 464.
81 Ibid at 495.
82 Ibid at 523.
83 Ibid at 523.
84 TE May, above n 31 at 521.
85 TE May, above n 69 at 471.
86 Standing Committee on Legal and Constitutional Affairs, above n 7 at para 6.2.1.
87 J Quick and R Garran, The Annotated Constitution of the Commonwealth (1901) at 671.
88 EC Nowell, above n 32 at 94.
89 Ibid at 120.
90 Ibid at 134.
91 Convention Debates (Sydney 1891) at 362.
92 Standing Committee on Legal and Constitutional Affairs, above n 7 at para 8.9.4.
93 Ibid at para 8.9.1. Emphasis in original.
94 J Hatsell, above n 29 at 154.
95 House of Commons Paper (414), Report from the Select Committee on Tax Bills (1860). The reference arose out the rejection by the Lords of the Paper Duties Bill 1860 (UK): T E May, above n 31 at 649.
96 Ibid at iii.
97 Ibid at iii.
98 Ibid at xi.
99 T E May, above n 31 at 649.
100 House of Commons Paper, above n 95 at xii.
101 Ibid at 49.
102 Ibid.
103 13&14 Caroli II, c 2.
104 House of Commons Paper, above n 95 at xii.
105 Ibid at 51.
106 Ibid.
107 Ibid.
108 Ibid at xii-xiii.
109 T E May, above n 31 at 647; EC Nowell, above n 43 at 120; House of Commons Paper, above n 95 at xiii.
110 House of Commons Paper, above n 95 at xii.
111 Ibid at xiv.
112 Ibid.
113 T E May, above n 31 at 642.
114 Ibid at 642, 643, 646 and 684; TE May, above n 69 at 476.
115 T E May, above n 31 at 646.
116 E C Nowell, above n 32 at appendix. He cites the House of Commons Paper (414), above n95.
117 E C Nowell, above n 32 at 175.
118 Ibid at 179.
119 E C Nowell, above n 43 at 120.
120 Ibid at 26.
121 Ibid at 27.
122 Ibid at 28.
123 Cowen, Z, “A Century of Constitutional Development” in Sir John Latham and Other Papers (1965) at 137-143Google Scholar; Manning Clark, above n 57 at 419-422. For correspondence between the Governor and the Colonial Secretary, see British Parliamentary Papers 1864-1869 (1969) Vol 25 at 31-279, 297-421 and 531-611.
124 Stevenson v The Queen (1865) 2 WW & a'B (L) 143.
125 British Parliamentary Papers 1864-1869 (1969) Vol 25 at 51. (Enclosure 6, in Darling to Cardwell, September 18 1865).
126 Ibid at 60. For the text of s 56 seen 49.
127 Ibid at 52.
128 Ibid at 60 (emphasis in original). See also Convention Debates (Sydney 1897) at 471 per H B Higgins for the advertence of the Convention to this issue.
129 British Parliamentary Papers, above n 123 at 61.
130 Ibid at 61.
131 John Dennistoun Wood was Tasmanian-born, an English barrister, admitted to the Victorian Bar in 1853: A Castles, above n 43 at para 2540.
132 The facts of this dispute are taken from Hearn, W, The Government of England (2nd ed 1886) at 613-623Google Scholar.
133 Ibid at 613.
134 Vic PD 1885, Vol xlix at 1255.
135 Ibid at 1332.
136 Ibid at 1486.
137 Ibid at 1486,1492.
138 Ibid at 1257.
139 Ibid at 1332.
140 W Hearn, above n 132 at 619-620.
141 Ibid at 620.
142 Ibid at 623.
143 It is possible to gain some impression of the importance of incidentally raised revenue from the Comparative Statement of Revenue and Receipts on Account of the Consolidated Revenue Fund 1885-6 (G B Barton, Excise Duty on Beer: Case and Opinion of Counsel (1887) (Mitchell Library) Appendix B. This work represented “the opinion of Mr G B Barton and Mr Edmund Barton” on the power of the NSW Legislature to authorise an excise duty on beer). “Revenue Proper” is a product of “taxation”, “land revenue”, “receipts for services rendered”, and “general miscellaneous receipts”. The category of “receipts for services rendered” is further divided into railway receipts, post office and mint receipts, fees for conveyance of gold, pilotage and harbour dues, registration of brands, public school fees, and assorted fees of office. These sources of revenue are not classified as taxation, but are the product of regulatory exaction.
144 It was this problem which formed the basis of the opinion expressed by Quick and Carran. They assumed that proposed laws increasing a “charge or burden on the people” were “laws imposing taxation” within the meaning of the second paragraph of s 53 and accordingly amendment was forbidden. To give the section some work they opted for a construction which made appropriations the subject of the third paragraph. Following similar reasoning, the Committee found other possibilities which reconcile the tension between the second and third paragraphs of s 53 by identifying tax Bills which are a “charge or burden on the people” for the purposes of the third paragraph, but which are not “imposing taxation” for the purposes of the second paragraph. These include Bills which enlarge the tax base, or increase the rate of taxation imposed in another Act.
145 S Griffith, above n 52 at 28.
146 Convention Debates (Sydney 1891) at 953.
147 That there is a gap appears in Sir Isaac Isaacs's consideration of the clause in the Convention Debates (Adelaide 1897) at 472.
148 Some modest support for this interpretation may be gained from debates upon the Queensland Constitution Bill 1892. This Bill proposed to divide Queensland into autonomous regions joined in a federation. Griffith, introducing the Bill, noted the provisions relating to Money Bills “are taken without alteration from the provisions of the Commonwealth Bill” (Qld Leg Assembly 1892, Vol LXVIII at 794). Unfortunately there was no detailed discussion of the words. However, a statement of Mr Gregory in the Legislative Council indicates that he, at least, thought that the words covered the situation of incidentally raised revenue. (Qld Leg Council 1892, Vol LXVI at 170).
149 Convention Debates (Adelaide 1897) at 53.
150 Ibid.
151 Convention Debates (Adelaide 1897) at 469. Emphasis added to indicate the change.
152 Ibid.
153 Ibid at 478.
154 Convention Debates (Sydney 1897) at 467.
155 Ibid at 468.
156 Ibid at 468.
157 Ibid at 469.
158 Ibid at 471.
159 Ibid at 470.
160 Ibid at 481.
161 Ibid at 538.
162 J Madison (writing as Publius), Concerning the Difficulties which the Convention must have Experienced in the Formation of a Proper Plan” in The Federalist Papers (1788, Penguin edition 1987) at 245.