Attorney-General (Qld) (at the relation of Goldsbrough, Mort and Company Limited) v Attorney-General (Cth) [1915] HCA 39

Attorney-General (Qld) (at the relation of Goldsbrough, Mort and Company Limited) v Attorney-General (Cth) [1915] HCA 39 - HCA 1915 case summary — Zoe

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invalid under the provisions of the Colonial Laws Validity Act peace: 1865. (Particulars: - Imperial Statutes 18 & 19 Vict. c. 54; GEXPRAr 18 & 19 Vict. c. 55; 18 & 19 Vict.c. 56; 24 & 25 Vict. c. 44; Comaon- 53 & 54 Vict. c. 26; Letters Patent issued by Her Majesty the late Queen Victoria on 6th June 1859 erecting part of New South Wales into a Colony under the name of Queensland ; Order in Council dated 6th June 1859 providing that the Legislature of the Colony of Queensland might make laws for regulating the sale letting disposal and occupation of the waste lands of the Crown within the said Colony.) (b) Alternatively with (a), that such taxation is repugnant to the provisions of some one or more of the said Imperial Statutes and is therefore altogether invalid ; upon the ground that, if such taxation were held to be invalid in one or more States and not in some other of the said States, such taxation would discriminate between States within the meaning of sec. 51 (11.) of the Con- stitution of the Commonwealth of Australia, and also upon the ground that the provisions of the said Acts purporting to impose by general words taxation upon similar interests in land in all the States, would not be severable as between the States in which such taxation was held to be valid and invalid respectively. (ce) That such taxation is a tax upon the property of a State or States contrary to the prohibition contained in sec. 114 of the Constitution of the Commonwealth of Australia. (d) That such taxation is a tax upon a governmental func- tion or instrumentality of the Government of the State of Queensland as well as of the other States of the Commonwealth. 5. The plaintiffs will further contend that the provisions of the said Land Tax Act 1910-1914 and Land Tua Assessment Act 1910-1914, in so far as they purport to impose a tax upon (inter alia) the unimproved value of land granted by the States after _ the date of the said Acts as freeholds or for any leasehold or _ other interest, are not a law with respect to taxation or with

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to impose taxation upon a subject matter of taxation other than H. ©. or A. land and that the said Land Tax Act 1910-1914 is a law imposing ke taxation which deals with more than one subject of taxation arporyey- within the meaning of sec. 55 of the Constitution of the Common- ss, wealth of Australia and is invalid, or alternatively that the Queenstanp provisions of the said secs. 36, 39 and 40 are invalid, hina 10. The plaintiffs will contend if, contrary to their contention, Seen the said taxation of Crown leaseholds is valid, that in the appli- Common- cation of the provisions of the Land Taw Assessment Act 1910- ""*"™™ 1914 to the determination of the unimproved value of a leasehold estate, held under the laws of a State relating to the alienation or occupation of Crown lands, any enhanced value given to such lands or leasehold estate, by reason of any natural advantages having been discovered by reason of the improvements made thereon by the owner or his predecessor in title should be dis- regarded. 11. Since the passing of the Land Yaa Assessment Act 1914 the plaintiffs Goldsbrough, Mort & Co. Ltd. and a very large number of other alleged taxpayers in the State of Queens- land have been required by the Commissioner of Land Tax to furnish returns (inter alia) of all leasehold estates held by them under the laws of the respective States relative to the alienation or occupation of Crown lands. Similar returns have been de- manded in respect of the interests held by all the persons herein- before mentioned respectively in all other lands or interests or alleged interests in lands as described in the said Act and all such returns will continue to be demanded in accordance with the provisions of the said Act in each succeeding year. 12. The plaintiffs claim : - (1) A declaration that the Land Tax Act 1910-1914 with which is incorporated the Land Tux Assessment Act 1910-1914 or alternatively the Land Tax Assessment Act 1910-1914 is invalid upon the grounds : - (a) That the provisions of the said Acts purport to impose the incidence of taxation upon all land in the Common- wealth of Australia, including all then existing Crown lands in the various States as they are from time to time granted as freeholds or are leased by or on behalf

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purposes, such as cutting timber, but the land tax is to be assessed on the hypothesis that the land may be put to any use. The tax has no relation to the value of the tenant's interest, but is a regulation of the use by the States of their land. [They referred to Peterswald v. Bartley (1); Brewers and Maltsters' Association of Ontario v. Attorney-General for Ontario (2). The power of taxation is a power to tax citizens in respect of any- thing, including land and interests in land. That power is coupled in sec. 114 of the Constitution with a prohibition against taxing property of the States. The Land Tam Assessment Act by sec. 29 purports to tax citizens in respect of interests which are not in them but in the States. A tax upon the interest of a Crown tenant under any existing or future lease is a tax upon the letting of Crown land, and that is within the prohibition of sec. 114, That section should be construed having regard to the purposes with which it was enacted, and that purpose is to be gathered from the history of the Act and the whole language of the Constitution: Prigg v. Commonwealth of Pennsylvania (3); Vardon vy. O'Loghlin (4). The word "property" in sec. 114 includes the waste lands of the States, including the exercise of all the powers included in property. That includes the right to create freehold or leasehold estates in the lands. Every act which the Crown does as to those lands is the exercise of the rights of property. A tax upon any estate or interest that may be carved out of those lands is a tax upon the carving out. A tax upon the beneficial interest of a person in an existing con- tract with the Crown is a tax upon the contract, or upon the function of entering into the contract: Weston v. City Council of Charleston (5). It affects a function of government: Bunk of Commerce v. New York City (6). That principle has been applied in the United States to a tax upon Government stock in the hands of an individual: Pollock v. Farmers' Loan and Trust Co. (7). {Hicerys J. referred to State Freight Taa Case (8).

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the existence of some Act of the British Parliament extending to the Colony, is within the ambit of its powers, but which is, in some one or more provisions, "repugnant" to the British Act. It is, therefore, hard to conceive of any law of the Federal Parliament within its powers that would be " repugnant" to the Act 18 & 19 Vict. c. 54. The repugnancy must be between the Commonwealth law and the 18 & 19 Vict. c. 54 - not between the Commonwealth law and the State Act. What does "repugnant" mean? Iam strongly inclined to think that no colonial Act can be repugnant to an Act of the Parliament of Great Britain unless it involve, either directly or ultimately, a contradictory proposi- tion - probably, contradictory duties or contradictory rights. If the Federal Parliament, in pursuance of its power to acquire land, were to vest land in A, and the State Parliament were to say that it vests it in B, there would be no repugnaney within the Colonial Laws Validity Act; for the repugnaney would be between the Federal law and the State law, and under see. 109 of the Constitution the Federal law prevails. By sec. 106, the Con- stitution of the State continues, but subject to the Federal Constitution. But if it is the British Parliament that vests the land in B, there is a repugnancy; and the British Act prevails. Assuming now that this Land Tax Act is an exercise of the power of taxation within sec. 51 (11) of the Constitution - and I think that it is - it prevails over any State law that conflicts with it; and it is not "repugnant" to the British Act 18 & 19 Viet. ¢. 54 by reason merely of its hampering or prejudicially affecting the policy or scheme devised by the State Legislature for dealing with its Crown lands. There is not, indeed, any allegation in the statement of claim that the Land Tax Act has such an effect; but, even if there were such allegation, it would not affect the result. There cannot be two law-making bodies operating over the same area and on the same persons - even if the law-making bodies legislate for different subject matters - without frequent mutual interaction and disturbing influence; but this does not show that the laws of either Legislature are repugnant to the British Act which creates the other Legislature.

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Judgment (250 paragraphs)