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On the First Paragraph of Section 55: A Response to P G Sharp

Published online by Cambridge University Press:  24 January 2025

Anthony S Marinac
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Extract

P G Sharp's paper entitled ‘The First Paragraph of Section 55' was a valuable and interesting contribution to analysis of one of the more interesting, yet little discussed, sections of the Constitution. He provided a rich historical background to the section and its interpretation, and essentially made the argument that, following Permanent Trustee Australia Ltd v Commissioner of State Revenue (Victoria), there is no further need for legislative drafters to split taxation legislation into a ‘Taxing Act’ and an ‘Assessment Act’.

However, Sharp's argument leaves a great deal unsaid, and I have constructed four questions to set against his article, inviting further comment.

Type
Research Article
Information
Federal Law Review , Volume 34 , Issue 2 , June 2006 , pp. 355 - 362
Copyright
Copyright © 2006 The Australian National University

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Footnotes

*

I am an officer of the Department of the Senate, and freely admit my pro-Senate partisanship. However the views expressed in this paper are entirely my own and do not reflect any official position of the Department of the Senate or any officer within it.

References

1 P G, Sharp, ‘The First Paragraph of Section 55’ (2005) 33 Federal Law Review 569Google Scholar.

2 (2004) 220 CLR 388 (‘Permanent Trustee’).

3 Like many authors, Sharp uses the term ‘parliamentary drafters’, which tends to suggest that legislative drafting is a function of the Parliament. In fact, government legislation is drafted by the Office of Parliamentary Counsel and delegated instruments are drafted by the Office of Legislative Drafting and Publishing, both executive government agencies answering to the Attorney-General.

4 (2004) 220 CLR 388, 398 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). McHugh J and Kirby J felt it unnecessary to consider s 55.

5 (1911) 12 CLR 321, 373.

6 (1926) 38 CLR 153, 215.

7 Permanent Trustee (2004) 220 CLR 388, 419 quoting Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 215 (Starke J).

8 Permanent Trustee (2004) 220 CLR 388, 419-20.

9 The form of words used in the second paragraph of s 53.

10 Sharp, above n 1, 578.

11 Ibid 579, footnote omitted.

12 Ibid.

13 Ibid.

14 Ibid.

15 (1920) 28 CLR 129.

16 (1988) 165 CLR 360.

17 One of the more stark examples in recent years can be found in Minnesota, where provisions legalising abortion were tacked onto a bill which deregulated performing circuses.

18 (1988) 165 CLR 462.

19 Permanent Trustee (2004) 220 CLR 388, 415.

20 Sharp, above n 1, 582.

21 Ibid 580.

22 Ibid.

23 Ibid.

24 Ibid.

25 The HonPeter, Costello MP (Treasurer of the Commonwealth of Australia), Tax Reform: Not a New Tax, a New Tax System (1998)Google Scholar.

26 Ibid 583.