(aise v | ar Sas - [1947] HCA 15 - HCA 1947 case summary

(aise v | ar Sas - [1947] HCA 15 - HCA 1947 case summary — Zoe

[28]

Phillips K.C. (with him Revelman), for the plaintiff. Under s. 265 (b) of the Local Government Act 1928 (Vict.) the liability for rates is imposed primarily on " every person who occupies " ratable land ; but, if (so far as is relevant to this case) " the occupier is the Crown," the section relieves the Crown of liability, and at the same time ensures that rates shall be payable, by transferring the liability to the owner. By taking possession of the land in question under reg. 54 of the National Security (General) Regulations, the Commonwealth became the occupier of the land within the meaning of s. 265 (6). The next question is whether that fact brings the case within the exception provided by s. 265 (b) where " the occupier is the Crown " ; that is, whether the words " the Crown " include the Crown in right of the Commonwealth as well as in right of the State. The plaintiff's first submission is that that is the case: that the defendants other than the Commonwealth are liable as owners of the land. In the alternative, the plaintiff will submit that, if the Commonwealth is not " the Crown," then it is liable as occupier, being within the earlier words of the section, "every person who occupies." The first submission is that, when "the Crown" is mentioned in a State statute, the prima-facie meaning is the Crown in all its capacities. This follows from the principle that the Crown is not bound by a statute unless it is expressly mentioned. In Australia, it is sub- mitted, this principle has the effect that, prima facie, a State statute does not bind the Crown in any of its capacities, whether in right of the State or of the Commonwealth or in any other right. That was the view of Rich and Williams JJ. in Minister for Works (W.A.) v. Gulson (1), and, although not stated in so many words, seems to be the basis of the judgment of Starke J. inthe same case. The judgment of Dizon J. in Farley v. Federal Commissioner of Taxation (2) tends in the same way, though it does not actually hold to that effect.

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it must necessarily reject the rule that, prima facie, a State statute does not bind the Crown in any of its capacities. This does not follow as of course. Further, the argument leaves out of account the possibility that evidence of the actual intention of the Victorian legislature is discoverable in the context of s. 265 (6). The first submission on behalf of the Commonwealth is that, as to the meaning of " the Crown," the plaintiff's rule of construction is correct : Even if it is not correct, the presumption still remains that the Act was not intended to bind the Crown in right of the Commonwealth any more than in right of the State, and there is nothing in the Act to rebut this presumption. [He referred to Gulson's Case (1), per Starke J.; Farley's Case (2), per Rich J.] Quite apart from pre- sumptions, however, there is sufficient evidence in the Act and its history to show affirmatively that the legislature intended by the words " the Crown " to refer to the Crown in all its capacities or, at all events, that it did not intend to include the Crown in any of its capacities in the phrase " every person who occupies." The legis- Jation goes back, substantially in its present form, as far as the Local Government Act 1903 (No. 1893: See ss. 249, 265), which departed as a matter of words (though not, it is pientieds so far as intention was concerned) from the prior form: The change of words appears to have been necessitated by, and merely consequential upon, the bringing in of new classes of ratable property. The prior form of words had persisted without any alteration that is material here since 1863 (Act No. 176: See ss. 181, 183; see also No. 506 (1874), ss. 253, 257; No. 1112 (1890), ss. 246, 257): The exemption was of lands occupied by the Crown or the Government of Victoria. The use of the two expressions, the Crown, and the Government of Victoria, is significant : The latter, one would suppose, was sufficient to protect the Crown in right of Victoria ; the use of the former suggests that it was contemplated that land in Victoria might be occupied by the Imperial Crown or the Crown in right of New South Wales, for instance, and it was thought desirable that the exemption should cover such cases. There is nothing in the new form of words to suggest any intention to alter the law so far as the liability of the Crown is concerned; on the contrary, it rather suggests that the reference to the Crown was thought sufficient of itself to preserve the old exemption. It will be seen that the problem of construction which presents itself here is not one created by Federation. Even if the words " the Crown " in s. 265 (6) must be limited by construction so that they are to be read as referring only to the Crown in right of

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The first step in the reasoning upon which I rely is a simple proposition about the nature of the rates. The rates are not a charge for services. They go into the general funds of the muni- cipality to be applied to any objects within its powers. The municipality levies the rates as a subordinate authority of the State and they are a tax (Municipal Council of Sydney v. The Common- wealth (1) ). The second step is a proposition no less simple but 'one concerning the law of the Constitution. It is that the State may not levy a tax directly upon the Commonwealth in respect of the execution of its duties or the exercise of its functions. That proposition I shall proceed to justify. But before doing so it is necessary to say what I do not rely upon to support it. First I do not rely on s. 114 of the Constitution. If the Common- -wealth's occupation of the land were property belonging to the Commonwealth within the meaning of that expression in s. 114 and the levying of the rate upon the land were considered the imposing of a tax upon that property, then the express and positive protection from liability given by the section would apply. But both these propositions are denied on the part of the municipality and there is, I think, sufficient doubt about them to make me prefer to take what I consider surer ground. A combination of factors gives rise to the doubt. Rates are levied in respect of the land and, although the occupier is the person made immediately liable, yet if he pays rent, then in the absence of any agreement to the contrary he may deduct the rates or recover them from the person to whom he pays the rent. If there is no occupier, the owner is immediately liable. In any case, the rates are a charge upon the land. It is, therefore, urged that the rates are not a tax on occupation. Then, on the other hand, the Commonwealth has no interest other than that of bare occupier entering for temporary purposes. The Minister for the Army went into possession in pursuance of a power given by a regulation enabling

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Constitution : - ' There is little justification for seeking to find in the Engineers' Case (1) authority for more than was decided. The importance alike of the principle there applied and of the application given to it is sufficiently great and far reaching. It is a principle adopted for the interpretation of the legislative powers of the Parliament. The principle is that whenever the Constitution confers a power to make laws in respect of a specific subject matter, prima facie it is to be understood as enabling the Parliament to make laws affecting the operations of the States and their agencies. The prima facie meaning may be displaced by con- siderations based on the nature or the subject matter of the power or the language in which it is conferred or on some other provision in the Constitution. But, unless the contrary thus appears, then, subject to two reservations, the power must be construed as extending to the States. The first reservation is that in the Engineers' Case (1) the question was left open whether the principle would warrant legislation affecting the exercise of a prerogative of the Crown in right of the States. The second is that the decision does not appear to deal with or affect the question whether the Parliament is author- ized to enact legislation discriminating against the States or their agencies" (2). To this should be added a third reservation, namely, that to which I have already referred concerning the taxation powers of the governments. The second passage contains almost all that I have to say about the need of implying some restraints on State action with reference to the Commonwealth. "Surely it is implicit in the power given to the Executive Government of the Common- wealth that the incidents and consequences of its exercise shall not be made the subject of special liabilities or burdens under State law. The principles which have been adopted for determining for the purposes of s. 109 whether a State law is consistent with a Federal statute are no less applicable when the question is whether the State Jaw is consistent with the Federal Constitution. Since the Engineers' Case (1) a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems to be the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers' Case (1) meant to propound such a doctrine " (3).

(aise v | ar Sas

At a glance

Court

Decision date

Before

Source

Judgment (178 paragraphs)

Parties