Air Caledonie International v Commonwealth

Air Caledonie International v Commonwealth - [1988] HCA 61 - HCA 1988 case summary — Zoe

[19]

There are three comments which should be made in relation to the above general statement of Latham C.J. The first is that it should not be seen as providing an exhaustive definition of a tax. Thus, there is no reason in principle why a tax should not take a form other than the exaction of money or why the compulsory exaction of money under statutory powers could not be properly seen as taxation notwithstanding that it was by a non-public authority or for purposes which could not properly be described as public. The second is that, in Logan Downs Pty. Ltd. v. Queensland [6] , Gibbs J. made explicit what was implicit in the reference by Latham C.J. to "a payment for services rendered", namely, that the services be "rendered to" - or (we would add) at the direction or request of - "the person required" to make the payment. The third is that the negative attribute - "not a payment for services rendered" - should be seen as intended to be but an example of various special types of exaction which may not be taxes even though the positive attributes mentioned by Latham C.J. are all present. Thus, a charge for the acquisition or use of property, a fee for a privilege and a fine or penalty imposed for criminal conduct or breach of statutory obligation are other examples of special types of exactions of money which are unlikely to be properly characterized as a tax notwithstanding that they exhibit those positive attributes. On the other hand, a compulsory and enforceable exaction of money by a public authority for public purposes will not necessarily be precluded from being properly seen as a tax merely because it is described as a "fee for services". If the person required to pay the exaction is given no choice about whether or not he acquires the services and the amount of the exaction has no discernible relationship with the value of what is acquired, the circumstances may be such that the exaction is, at least to the extent that it exceeds that value, properly to be seen as a tax.

[25]

If the fee had been exacted only in those cases where the arriving passenger was not an Australian citizen, it would have been arguable that, regardless of whether it was a "fee for services", it was not a tax. In that event, and notwithstanding the countervailing analogy of a customs duty which is clearly a tax, there might have been some force in an argument to the effect that it was to be seen as a charge imposed upon the passenger for the privilege of entering Australia or as a licence fee and that the requirement that the airline operator collect the fee (and pay the amount of it to the Commonwealth if not collected from the passenger) could not convert it into a tax. However, as has been seen, the fee was payable by, and in respect of, both citizens and non-citizens arriving on an international airline flight. The only exemption was of those whom the Executive might see fit to prescribe by regulation. The right of the Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or "clearance" from the Executive. In the case of such a returning citizen, the impost could not be regarded as a charge for the privilege of entry. It has not been, and it could not sensibly be, suggested that the provisions of s. 34A could be transformed, by any acceptable process of severance or reading down, from provisions imposing clearance "fees" upon, or with respect to, arriving airline passengers generally into provisions discriminating against visiting non-citizens or non-nationals by imposing a form of entry fee only in relation to them. Accordingly, the question whether the provisions of s. 34A are properly to be characterized as a law "imposing taxation" must be answered on the basis that they applied indifferently with respect to returning citizens and visiting non-citizens. That being so, s. 34A was a law "imposing taxation" if the fee which it purported to exact from, or with respect to, returning citizens was, for relevant purposes, properly to be characterized as a tax. The only basis upon which it has been suggested that the fee which the section purported to impose for "the clearance of" a returning citizen was not taxation was that it represented a fee "for services".

[27]

At least in a case of the ordinary Australian citizen returning by air from overseas, the description of the purported impost (see s. 34A(1)) as a "fee for immigration clearance of that passenger" did not suffice to make the impost a "fee for services" in any relevant sense. As has been said, such a citizen had, under the law, the right to re-enter the country, without need of any Executive fiat or "clearance", for so long as he retained his citizenship. The subjection of such a citizen to administrative procedures at the point of entry (see Migration Regulations, reg. 4) may be necessary, in the public interest, to enable the entry of non-citizens to be prevented or controlled and to enable proper administrative records and procedures to be kept or followed in relation to the arrival and departure of citizens and non-citizens alike. A requirement that a returning citizen submit, in the public interest, to the inconvenience of such administrative procedures at the end of a journey cannot, however, properly be seen as the provision or rendering of "services" to, or at the request or direction of, the citizen concerned. Nor is it possible to find in s. 34A (or in any other provision of the Act) any identification of particular services provided or rendered to the individual passenger for which the impost could relevantly be regarded as a fee or quid pro quo. As has been seen, the section neither fixed the amount of the fee nor indicated the considerations to which the Executive was required to pay regard in prescribing it. In these respects, the impost which s. 34A purported to exact is to be contrasted with the nominated statutory fee of ten dollars (no other having been prescribed) for the processing of a particular individual's application to become an approved pathologist which was held not to be a tax in General Practitioners Society v. The Commonwealth [8] . Indeed, one need do no more than refer to the second reading speech of the responsible Minister, to which both sides referred the Court, to confirm that the moneys intended to be raised by the purported impost were not related to particular services to be supplied to particular passengers but were intended to provide, when paid into consolidated revenue, a general off-setting of the administrative costs of certain areas of the relevant Commonwealth Department, including, for example, the administrative costs involved in maintaining facilities for the issue of visas in overseas countries and "general administrative overheads". Therefore, the fee which s. 34A purported to exact was, at least in so far as it related to passengers who were Australian citizens, a tax and the provisions of the section were, for relevant purposes, a law "imposing taxation". We turn to consider the effect on the validity of the amending Act of that conclusion.

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Judgment (33 paragraphs)

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