Northern Suburbs General Cemetery Reserve Trust v Commonwealth

Northern Suburbs General Cemetery Reserve Trust v Commonwealth - [1993] HCA 12 - HCA 1993 case summary — Zoe

[41]

As stated earlier, s. 34(1) of the Administration Act provides that money in the Fund (which may include money paid to the Commonwealth in discharge of an obligation to pay the charge) "may be applied for the purposes of (b) making payments under training guarantee agreements". Section 35 provides for the making of training guarantee agreements. They are "agreements about making payments out of the Fund to [a] State or Territory and the expenditure of those payments, or amounts attributable to those payments, in relation to eligible training programs" [7] . An agreement is of no effect unless the State or Territory agrees "to ensure that the payments [under the agreement], or amounts attributable to the payments, are expended only in relation to eligible training programs" (s. 35(2)(b)(ii)). But the Administration Act imposes no requirement that the State or Territory agree to expend the money paid under an agreement on eligible training programs for those employers who have paid money to the Commonwealth in discharge of an obligation to pay the charge. True it is that the State or Territory must agree that it "supports the Training Guarantee Scheme" (s. 35(2)(a)) and agree to distribute payments made to it under the agreement on the advice of a body containing representatives of the State or Territory, employers and trade unions (s. 35(2)(b)(i)). But these requirements fall a long way short of requiring either that the money received be expended on the provision of eligible training programs or that the money received be expended in relation to eligible training programs for those employers who have incurred a liability to pay the charge. There is therefore no statutory warrant for concluding that the charge paid is a fee for services. The Administration Act does not by its terms establish any sufficient relationship between the liability to pay the charge and the provision of employment related training by the ultimate expenditure of the money collected to regard the liability to pay the charge as a fee for services or as something akin to a fee for services.

[77]

[T]he present Mode of charging and computing the several Duties of Customs and Excise, and other Duties under the Management of the Commissioners of Excise in England and Scotland respectively, is in many Instances intricate and complicated, and productive of much Embarrassment to the Persons who are to pay the same, as well as of great Perplexity in the Accounts of the Publick Revenue. That Act, as well as consolidating the many Acts providing for "the several Duties of Customs and Excise", established the Consolidated Fund (s. 47) "comprehending all the different Branches of the Revenue" [25] into which was to flow "every Stream of the Public Revenue, and from whence shall issue the Supply for every Public Service" [26] . Thus, "[t]he produce of particular taxes was no longer appropriated to particular heads of expense" [27] . The constitutions of the self-governing Australian colonies adopted this approach [28] . And Professor Harrison Moore was able to write [29] : The Constitution [in ss. 81 and 83] thus adopts the results of English and Colonial experience. A Consolidated Fund has long commended itself in preference to the assignment of specific taxes to specific charges. This aspect of s. 81 does not appear to have been the subject of specific consideration at the Convention Debates [30] . 1. Preamble. 2. Great Britain, The Thirteenth Report of the Commissioners appointed to Examine, Take, and State the Public Accounts of the Kingdom, March 1785, p. 60. 3. Anson and Berriedale Keith, The Law and Custom of the Constitution, 4th ed. (1935), vol. 2, p. 179. 4. New South Wales: New South Wales Constitution Act 1855 NSW (17 Vict. No. 41) (Sched. 1 of 18 & 19 Vict. c. 54 (Imp.)), s. 47; Queensland: Constitution Act 1867 Q (31 Vict. No. 38), s. 34; Tasmania: Consolidated Revenue Fund Act 1873 Tas (37 Vict. No. 8); Victoria: Constitution Act 1855 Vict (Sched. 1 of 18 & 19 Vict. c. 55 (Imp.)), s. 44; Western Australia: Constitution Act 1899 WA (52 Vict. No. 23), s. 64. 5. The Constitution of the Commonwealth of Australia, 2nd ed. (1910), p. 522. 6. Corresponding text appeared in the first draft Bill produced at the Sydney Convention in 1891 (Ch. 4, s. 1). The differences in the text as enacted are minor: see Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), p. 811.

[91]

The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation. The question then is whether the appropriation so made is an appropriation for the ordinary annual services of the Government. According to the traditional view, a failure to comply with the dictates of a procedural provision, such as s. 54, dealing with a "bill" or a "proposed law" is not contemporaneously justiciable and does not give rise to invalidity of the resulting Act when it has been passed by the two Houses of the Parliament and has received the royal assent [33] . Sections 53 to 55 inclusive have their origin in the resolution of the House of Commons of 3 July 1678 [34] . That all Aids and Supplies, and Aids to his Majesty in Parliament, are the sole Gift of the Commons: And all Bills for the Granting of any such Aids and Supplies ought to begin with the Commons: And that it is the undoubted and sole Right of the Commons, to direct, limit, and appoint, in such Bills, the Ends, Purposes, Considerations, Conditions, Limitations, and Qualifications of such Grants; which ought not to be changed, or altered by the House of Lords and the resolution of the House of Lords of 9 December 1702 in response to House of Commons' abuse of this privilege by tacking [35] : That the annexing of any Clause or Clauses to a Bill of Aid or Supply, the Matter of which is foreign to, and different from, the Matter of the said Bill of Aid or Supply, is Unparliamentary, and tends to the Destruction of the Constitution of this Government. But even if the failure to comply with s. 54 were a ground of invalidity, it is clear that the appropriation is a standing appropriation and that, therefore, the Administration Act does not appropriate money for the ordinary annual services of the Government. So much is established by Brown v West [36] . Accordingly, the argument based on s. 54 of the Constitution must fail. 1. Quick and Garran, op. cit., p. 674; Osborne v The Commonwealth (1911), 12 C.L.R., at pp. 336, 351-352, 355-356, and cf. at p. 373; Air Caledonie International (1988), 165 C.L.R., at pp. 468, 471. 2. Journals of the House of Commons, vol. 9 (3 July 1678), p. 509. See also Journals of the House of Commons (5 July 1860), p. 360; House of Commons Parliamentary Debates (Hansard), 5 July 1860, col. 1383; Journals of the House of Commons (1910), p. 95. See generally Erskine May, Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 21st ed. (1989), p. 743. 3. Journals of the House of Lords, vol. 17 (9 December 1702), p. 185. 4. (1990) 169 C.L.R. 195, at pp. 206-208.

[95]

it had been the practice to assign specific taxes to specific charges, with the result that the public accounts became extremely complicated In 1787 was established the Consolidated Fund into which was "to flow every stream of the public revenue and from whence to issue the supply for every public service". [40] The produce of particular taxes was no longer appropriated to particular heads of expense. [41] This reform was effected by statute [42] which directed that revenue of the several categories therein mentioned should "be carried to, and constitute a Fund, to be called The Consolidated Fund ". Subsequently, the Consolidated Fund Act 1816 UK [43] directed that all "Rates, Duties, Taxes, Receipts, Sums of Money and Revenues" should "be carried to, and be and become, and form and constitute One General Fund, called the Consolidated Fund of the United Kingdom of Great Britain and Ireland ". The moneys which form the Consolidated Fund of the United Kingdom are paid into an account with the Bank of England called the "Account of Her Majesty's Exchequer" [44] . When the Constitutions of the several Australian Colonies were enacted, consolidated funds under Parliamentary control were established but the respective statutes [45] omitted any direction that the public moneys of the colony should "be carried to" the Fund. Nor does such a direction appear in s. 81 of the Constitution. 1. Halsbury's Laws of England, 4th ed., vol. 8, par. 1364. 2. Petition of Right (1627), s. 8; Bill of Rights (1688), s. 1; Maitland, The Constitutional History of England (1908), pp. 307-309; Attorney-General v Wilts United Dairies Ltd. (1922), 91 L.J.K.B. 897, at p. 900. 3. Auckland Harbour Board v The King [1924] AC. 318, at pp. 326-327; Maitland, op. cit., pp. 309-310. 4. Great Britain, Thirteenth Report of the Commissioners appointed to Examine, Take, and State the Public Accounts of the Kingdom, March 1785, p. 60. 5. Anson and Berriedale Keith, The Law and Custom of the Constitution, 4th ed. (1935), vol. 2, p. 179. 6. (1787) 27 Geo. III c. 13, ss. 47 and 48. 7. 56 Geo. III c. 98, s. 1. When Ireland became independent the necessary changes were made. 8. Halsbury , op. cit., par. 1369. 9. New South Wales: New South Wales Constitution Act 1855 NSW (17 Vict. No. 41) (Sched. 1 of 18 & 19 Vict. c. 54 (Imp.)), s. 47; Victoria: Constitution Act 1855 Vic (Sched. 1 of 18 & 19 Vict. c. 55 (Imp.)), s. 44; Queensland: Constitution Act 1867 Q (31 Vict. No. 38), s. 34; Tasmania: Consolidated Revenue Fund Act 1873 Tas (37 Vict. No. 8), s. 2; Western Australia: Constitution Act 1899 WA (52 Vict. No. 23), s. 64.

[104]

It was not submitted in this case that the purposes to which the Training Guarantee Fund may be put are not "purposes of the Commonwealth". Here, s. 33(a) and (b) specify the amounts to be paid into the Training Guarantee Fund, but s. 33 is not in terms an appropriation: it merely directs the payment into the Training Guarantee Fund of the several amounts therein specified. Section 32(2) declares the Training Guarantee Fund to be "a trust account for the purposes of section 62A of the Audit Act 1901 ". The moneys standing to the credit of such a trust account are deemed by s. 62A(3) of the Audit Act "to be moneys standing to the credit of the Trust Fund" established by Pt IX of the Audit Act. The Audit Actestablishes the Commonwealth Public Account (s. 21), the Loan Fund (Pt VIII) and the Trust Fund, describing each of the Loan Fund and the Trust Fund as a "separate account" (ss. 55, 60). The moneys standing to the credit of those "accounts" are "revenues or moneys raised or received by the Executive Government of the Commonwealth" within the meaning of that phrase in s. 81 of the Constitution. Although the use of the term "Fund" may suggest that the moneys standing to the credit of the Loan Fund and the Trust Fund are not part of the C.R.F. [57] , I would hold that, for the purposes of s. 81 of the Constitution, the Commonwealth Public Account, the Loan Fund and the Trust Fund "form one Consolidated Revenue Fund" until the moneys standing to the credit of those respective accounts are disbursed pursuant to an appropriation. It follows that s. 33 of the Administration Act merely prescribes the amount of the moneys which are to be credited to the Training Guarantee Fund. Section 34(1)(a) prescribes the amounts which are to be debited against the Training Guarantee Fund. The amounts prescribed by s. 34(1)(a), being costs incurred by the Commonwealth, ascertained on the basis which the Minister for Finance considers appropriate under s. 34(2), do not leave "the Treasury of the Commonwealth". Presumably, on being debited to the Training Guarantee Fund, they are credited to the Commonwealth Public Account and form part of the mass standing to the credit of that account.

[129]

In one sense, all taxes exacted by a national government and paid into national revenue can be described as "fees for services". They are the fees which the resident or visitor is required to pay as the quid pro quo for the totality of benefits and services which he receives from governmental sources. It is, however, clear that the phrase "fees for services" in s. 53 of the Constitution cannot be read in that general impersonal sense. Read in context, the reference to "fees for services" in s. 53 should, like the reference to "payment for services rendered" in the judgment of Latham C.J. in Matthews v Chicory Marketing Board [67] , be read as referring to a fee or charge exacted for particular identified services provided or rendered individually to, or at the request or direction of, the particular person required to make the payment. The principal purpose of the Training Guarantee Fund, into which the amount of the training guarantee charge is paid, is to make payments under training guarantee agreements with the States and Territories. The amounts paid are then to be used by the States and Territories in relation to eligible training programs. The employees of an individual employer upon whom the charge is levied might or might not benefit from a training program financed by a State or Territory. If a training program may be characterized as a service it is not a particular service rendered to a particular employer by reference to the charge levied upon him. A particular employer may derive no more benefit from payments made under training guarantee agreements than is derived by employers or the community in general from having a better trained workforce upon which to draw. The training guarantee charge is not a charge "exacted for particular identified services provided or rendered individually to, at the request or direction of" the employer required to make the payment. It cannot, therefore, be said to be a fee for services or akin to a fee for services in any sense which would prevent it from being a tax. 1. (1988) 165 C.L.R. 462. 2. ibid., at pp. 469-470. 3. (1938) 60 C.L.R., at p. 276.

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Judgment (195 paragraphs)

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