GROUND 2 ‑ CIVIL CONSCRIPTION
11 The only restriction on the Commonwealth's power to make laws imposing civil conscription is found in s 51(xxiiiA) of the Constitution. The power to legislate to provide medical and dental services is limited by the phrase "but not so as to authorize any form of civil conscription". This prohibition applies only to the provision of medical and dental services, and not to the other benefits etc mentioned in par (xxiiiA): British Medical Association v The Commonwealth (1949) 79 CLR 201; Alexandra Private Geriatric Hospital Pty Ltd v The Commonwealth (1987) 162 CLR 271 at 279.
12 The validity of the GST laws, including those provisions requiring persons to withhold amounts and remit them to the Commissioner, depends on whether they are laws with respect to taxation within s 51(ii). If they are, the fact that they may impose "civil conscription" (a concept considered in the British Medical Association Case at 248‑250, 255, 262, 283‑284, 287, 292‑293) is irrelevant. The attack is limited to the withholding tax provisions in the PAYG Act. Section 12‑190 requires a payer to withhold an amount from a payment it makes to another person if the payment is for a supply the other has made or proposes to make and none of the exceptions in the section applies. One of the exceptions is where the other person quotes an Australian Business Number. The payer must remit the withheld amount to the Commissioner. The power to make laws with respect to taxation is not restricted to laws dealing with the imposition and collection of tax. It extends to measures that will enable the system of taxation to function effectively. It extends to measures intended to prevent the evasion of taxation, be that evasion by the concealment of income or assets with a view to avoiding the imposition of liability to pay taxation or with a view to avoiding the payment of taxation that has become due to the Commonwealth. See Rogers v The Queen (1995) 64 SASR 280 at 287‑288; 130 ALR 635 at 642. The withholding provisions are designed to prevent the avoidance of tax by a payee who does not quote an ABN. In my view the provisions fall within the core of the subject matter of s 51(ii). Cf Tricontinental Corporation Ltd v Commissioner of Taxation [1988] 1 Qd R 474 at 482. If they do not, they are provisions that fall within the implied incidental power, as matters which are necessary for the reasonable fulfilment of the legislative power. See Burton v Honan (1952) 86 CLR 169 at 177 and Commissioner of Taxation v Clyne (1958) 100 CLR 246 at 262. The claim that the GST laws are invalid because they impose civil conscription has no prospect of success. Because they are valid laws under s 51(ii), it is not necessary to decide whether they do impose civil conscription.