Permanent Trustee Australia Limited v Commissioner of State Revenue

Permanent Trustee Australia Limited v Commissioner of State Revenue - [2004] HCA 53 - HCA 2004 case summary — Zoe

[33]

On 27 March 2001, the Commissioner made an assessment to stamp duty (identified as having been made under the Stamps Act, "being a corresponding applied law pursuant to the [Mirror Taxes Act]") in respect of an instrument of lease identified in the case stated as "the Development Agreement". The instrument was assessed to duty in the sum of $762,583.20. The Development Agreement is dated 1 July 1998 and concerns the development of a hotel at Tullamarine Airport. Since 2 July 1997, this place, which is land registered under the provisions of the Transfer of Land Act 1958 (Vic), has been vested in the Commonwealth[10] and leased by the Commonwealth to Australia Pacific Airports (Melbourne) Pty Ltd ("APAM") for a period of 50 years on terms that the land be used as an airport. Other uses not inconsistent with use as an airport are permitted, but any sub‑lease must be consistent with regulations made under the Airports Act 1996 (Cth).
The appellant ("Permanent") and APAM are two of the three parties to the Development Agreement. Clause 5.2 of the Development Agreement contains an agreement between APAM and Permanent for entry into a lease to Permanent on completion of the development on terms attached as Sched G. Clause 2.1 of the Development Agreement states the intent that Permanent will procure Hilton International Co to conduct a four star hotel on the leased premises.
The reasons for decision given by the Commissioner for the assessment indicate that the assessment was made on the basis that the Development Agreement was an agreement for lease required by s 77 of the Stamps Act to be charged under the Third Schedule as if it were a lease. There is a disputed issue concerning the method of computation of the duty but that is not before this Court.
Permanent's objection to the assessment was, pursuant to s 33B of the Stamps Act, set down for hearing before the Supreme Court of Victoria. On 3 October 2003, this Court ordered that that part of the objection concerning the validity of the Mirror Taxes Act be removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth). There followed the case stated for consideration of the Full Court.

[70]

This was an action brought in this Court to recover moneys demanded colore officii and paid under protest to the Commonwealth. The moneys were paid for probate and succession duties assessed on assets in the Northern Territory of an estate of which the plaintiffs were the executors under a grant of probate in New South Wales. A reseal was required in the Territory before the assets there could be administered by the plaintiffs.
The Territory had been surrendered by the State of South Australia to and accepted by the Commonwealth within the meaning of s 122 of the Constitution. In the exercise of the legislative power conferred by s 122, s 7(1) of the Northern Territory Acceptance Act 1910 (Cth) ("the Acceptance Act") specified that "[a]ll laws in force in the Northern Territory at the time of the acceptance shall continue in force, but may be altered or repealed by or under any law of the Commonwealth". Further, s 5 of the Northern Territory (Administration) Act 1910 (Cth) ("the Administration Act") provided that any law continued in force under s 7 of the Acceptance Act was to "have effect in the Territory as if it were a law of the Territory". In the generality of these application of laws provisions, this legislation foreshadowed the scheme later adopted with the 1970 Act to meet the exigencies not of s 122 but of s 52 of the Constitution.
Among the laws of South Australia so applied to the Territory in the fashion just described were the Succession Duties Act 1893 (SA) and the Administration and Probate Act 1891 (SA), the first imposing succession duty and the second probate duty. The submission of the plaintiffs in Buchanan was that there were thus at least two separate subjects of taxation dealt with by the Acceptance Act and the Administration Act, and the legislative power of the Parliament under s 122 had been subject to the requirement in s 55 that a law imposing taxation (as each of the federal statutes was) deal with one subject of taxation only.
That argument was rejected. Two reasoned judgments were delivered by Barton ACJ and Isaacs J; Gavan Duffy and Rich JJ concurred in the conclusion arrived at by the other Justices[17]. The reasons given emphasised (i) the absence from the Parliament of any representation of the people of the Territories[18]; (ii) the design of s 55 as a protection for the Senate "which represents the States as such"[19]; (iii) the "taxation" with which s 55 is concerned is that found in s 51(ii), "the taxation of a Commonwealth whose component parts are the States"[20]. Isaacs J also considered at length but did not rule upon the further argument that, even if s 55 otherwise might apply to Territory laws, the effect of the surrender and acceptance process provided for in s 122 was that "all municipal laws" in force at the time of the surrender remained in force until negatived by the Commonwealth, and the South Australian taxing laws of 1891 and 1893 were such "municipal laws"[21].
Things have changed since Buchanan was decided. Proposition (i) has not held good for many years, in particular since legislation providing for full representation of the Northern Territory and the Australian Capital Territory in each chamber of the Parliament was upheld in Western Australia v The Commonwealth[22] and Queensland v The Commonwealth[23]. Propositions (ii) and (iii) do not address the situation of Commonwealth places. These, unlike territory surrendered under s 122, remain within the area of the respective States[24]. Hence the interest of the States in achieving by dint of the Mirror Taxes Act the application of the Stamps Act in those places.
Thus, whatever may be the continuing strength of Buchanan respecting the relationship between s 122 and s 55, a matter not here in issue, Buchanan provides no binding authority respecting Commonwealth places. Moreover, the text of the Constitution in terms subjects the exercise of the legislative power conferred by s 52 to the Constitution as a whole. As with s 51, the conferral of legislative power by s 52 is made "subject to this Constitution". Section 122 contains no such express statement. Once it be concluded, as it has been in Allders, that s 52(i) is a grant of legislative power not a statement of the exclusivity of powers found in s 51, such as the taxation power in s 51(ii)[25], then the phrase "subject to this Constitution" aligns s 52(i) with the requirements of s 55.
It follows that, contrary to what was said in the Explanatory Memorandum, it was not permissible to draft the Mirror Taxes Act unconstrained by the requirements of s 55 of the Constitution. To those requirements we now turn.

[84]

On the other hand, as was noted in the Native Title Act Case, s 57 stands in a different position. This is so although s 57, in specifying the procedures for the resolution of differences between the two chambers of the Parliament with respect to a "proposed law", uses that same term as ss 53 and 54.
It was held in Victoria v The Commonwealth and Connor[35] that the Petroleum and Minerals Authority Act 1973 (Cth) was not a valid law of the Commonwealth. The Bill for that statute was not a "proposed law" which could have been submitted to a joint sitting under the procedures of s 57 of the Constitution and as a result the Bill had not become a valid statute. Failure in the conditions precedent to the exercise of the power conferred by s 57 upon the Governor-General to dissolve both chambers simultaneously thus may tender a justiciable issue of the validity of the passage at a subsequent joint sitting of a "proposed law" whose passage was the subject of disagreement between the two chambers. Both Gibbs J[36] and Mason J[37], who, with Barwick CJ and Stephen J, constituted the majority, expressly rejected the submission that the use of the expression "proposed law" in s 57 should lead to a similar conclusion in relation to that section to the conclusion that the phrase "proposed laws" in s 53 was directed only to the internal affairs of the Parliament.
Like s 55, s 54 uses the phrase "shall deal only with" but in respect of "[t]he proposed law which appropriates revenue or moneys for the ordinary annual services of the Government". However, the terms of s 55 are directed to "laws" not to "proposed laws". The issue of compliance with s 55 may provide a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution. That is well settled (over the contrary opinion of Higgins J in Osborne[38]) and not disputed. However, as things stood in 1951, Dixon J was able to speak in his judgment in Moore v The Commonwealth[39] of "the hitherto ineffectual menaces of s 55".
That was said with respect to a long line of cases. That had commenced even before the establishment of this Court. The enactment of the Customs Act 1901 (Cth) preceded that of the Customs Tariff Act 1902 (Cth). Part VIII of the former statute ("the Customs Act") contained provisions for the computation and payment of duties, including s 153 which constituted duties Crown debts recoverable by court proceedings in the name of the Collector of Customs[40]. The latter statute ("the Tariff Act") stated that it imposed duties of customs in accordance with the Schedule (s 5), and that the Customs Act was "incorporated" and to be "read as one" with it (s 2). In Stephens v Abrahams (No 2)[41], the Full Court of the Victorian Supreme Court held that Pt VIII of the Customs Act was not a "law imposing taxation" within the meaning of s 55 of the Constitution. The result was the upholding of the conviction of the respondent under ss 234 and 236 of the Customs Act (which were located in Pt XIII) for having been unlawfully concerned in making false statements in a customs declaration.
In Stephens, the Full Court heard full arguments by Deakin and by Isaacs KC on the question whether, on the assumption that the first limb of s 55 did apply to Pt VIII, ss 234 and 236 were "other matter" which was "of no effect" or whether they were saved as within the description of laws dealing with the imposition of taxation. The Full Court did not rule on this question, but views were expressed upon it. Williams J said of ss 234 and 236[42]:

[87]

The line of cases continued in this Court with Osborne[44], and included Federal Commissioner of Taxation v Munro[45] and Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation[46]. This Court continued to draw the distinction between laws imposing taxation and pecuniary and other obligations cast in terms of a penalty or even (as in Moore) as "additional taxation" which were for the protection of the revenue or which provided "legal machinery" by which the obligation declared by the imposition of taxation was effectuated. That line of authority continued after Moore with Commissioner of Taxation v Clyne[47], Re Dymond[48], Collector of Customs (NSW) v Southern Shipping Co Ltd[49], and MacCormick v Federal Commissioner of Taxation[50].
The legislation under challenge in these cases had been enacted by following what, in Moore, Dixon J called the "tried and venerated procedure" of framing a general statute ("an assessment Act") and a statute dealing specifically with the imposition of liability ("a taxing Act")[51].
In these cases, undoubtedly a tax was imposed by the taxing Act; the issue was whether the provisions in the relevant assessment Act imposed a further tax and did so in a statute dealing with a range of matters allegedly beyond the imposition of tax. These attacks all failed because of the "protective" character ascribed to the provisions of the assessment Act. Thus, it was not necessary to decide the issue, vital to the party contesting validity, that would arise if the assessment Act did contravene s 55, namely whether the "machinery" provisions which were relied upon by the revenue could be disregarded as "other matter" within the concluding words of the first sentence of s 55[52]. This was the issue raised at the outset but unresolved in Stephens in 1903.
However, there is a second category of case. On two occasions, in Air Caledonie International v The Commonwealth[53] and Australian Tape Manufacturers Association Ltd v The Commonwealth[54], statutes amending respectively the migration and copyright laws and which were not split between a tax Act and an assessment Act were held to impose taxation and to deal with "other matter" within the meaning of s 55 of the Constitution. The result of the application of s 55 was to deny effect to that "other matter". In particular, Air Caledonie[55] established with respect to the relationship between the principal statute and the amending statute on the one hand, and s 55 on the other, that both the amending statute imposing taxation and the thus amended principal statute deal only with the imposition of taxation. However, attacks based on the first limb of s 55 failed with respect to the service charges and child maintenance payments recovery scheme respectively at stake in Airservices Australia v Canadian Airlines International Ltd[56] and Luton v Lessels[57].

[124]

These formulations by Higgins J and Starke J should be accepted. They are consistent with the evident purpose of s 55, supported by its history, of restraining abuse by the House of Representatives of its powers with respect to taxing measures by the tacking of other measures and so placing the Senate in the invidious position of which Deakin spoke in his argument in Stephens[94]. "Tacking" is quite a different matter to the insertion in a taxing statute of provisions for the assessment, collection and recovery of that tax.
To accept these propositions means that a law containing added provisions of this nature is still a "law imposing taxation" to which there attaches the stipulation in s 53 of the Constitution denying to the Senate a power of amendment but enabling a return of Bills with a request, by message, for omission or amendment of any items or provisions therein.
However, the construction of the first limb of s 55 which should be accepted does not foreclose further observance of a practice or convention of splitting Bills between a taxing Act and an assessment Act. An assessment Act of the character of those in the numerous decisions of this Court discussed earlier in these reasons will not be a law imposing taxation with respect to which s 53 will restrict the powers of the Senate.
The Mirror Taxes Act is an example of a legislative purpose of the House of Representatives which could only be achieved with difficulty by the splitting of Bills. In these and other cases where the House of Representatives decides upon a like course, the law which imposes taxation may deal with the assessment, collection and recovery of taxation without falling foul of the first limb of s 55.
The provisions of the Mirror Taxes Act including the application of the Stamps Act in its modified form appear to answer the description of laws providing for the assessment, collection and recovery of taxation, and so to be valid. No detailed submission to the contrary effect was made. Were such a point to be taken, a further issue would arise. This would be whether the impugned provisions nevertheless answered the more general expressions used by Higgins J and Starke J as to the width of the term "dealing with". These questions do not presently arise and may be put to one side.
The result is there should be answered "No" the question in par (a)(i) of question 2 of the case stated, namely whether the Mirror Taxes Act is invalid or ineffective to permit the assessment of duty under the assessment on the ground that, contrary to s 55 of the Constitution, it is a law imposing taxation and deals with a subject-matter or subject-matters other than the imposition of taxation.

[138]

The second submission by the appellant on this head of argument concerns the existence and nature of the prohibited preference. The appellant accepts that there would be no infringement of s 99 by the imposition by federal law of a stamp duty which applied to all Commonwealth places whatever their location, even though the result could be that within the one State different rates would apply depending on the situation of a locality inside or outside a Commonwealth place in that State. What the appellant does assert is that the Mirror Taxes Act has an effect of preferring one State over another State because different rates of taxation and exemptions from taxation apply depending solely on whether the relevant Commonwealth place is in one State rather than another. The rates of taxation and, indeed, the types of taxes that are imposed by federal law differ from State to State.
These submissions should not be accepted. Several points should be made. First, this is not the occasion to seek to disentangle the reasoning in all the disparate authorities in the first 50 years of the Court which concern s 99 in its operation upon "any law or regulation of trade, commerce ...".
Secondly, the critical phrase in s 99, "give preference ... over", expresses, as Dixon J put it in Elliott v The Commonwealth[102], "a conception necessarily indefinite". As a consequence, in a given case, much will depend upon the level of abstraction at which debate enters upon the particular issue. Hence the statement by Latham CJ in Elliott[103] that the words "give preference to A over B" are not to be construed as meaning "make a distinction or differentiation between A and B". Elliott itself held, by majority[104], that the specification by the regulations challenged by the plaintiff of ports in some States only where unlicensed persons were not to be engaged as seamen did not give preference to any State or part thereof over another State or part thereof.
Thirdly, in Elliott, Latham CJ (one of the majority) remarked[105] that, while preference necessarily involves discrimination or lack of uniformity, the latter does not necessarily involve the former. In the same case, Dixon J (one of the minority) expressed the same idea, saying[106]:

[146]

Where then in the Mirror Taxes Act is there to be found the necessary element of discrimination between one State or any part thereof and another State or any part thereof? The scheme of the Mirror Taxes Act is to treat as relevantly of the same character the whole of the geographic area of each State, including those portions which are Commonwealth places; the taxation laws applying in the Commonwealth places are assimilated with those laws in the surrounding State. The scheme of the Mirror Taxes Act may produce differences in revenue outcomes between States, but that mirrors the differences that exist between the different taxation regimes from State to State. The differential treatment and unequal outcome that is involved here is the product of distinctions that are appropriate and adapted to a proper objective. There is no benefit or advantage enjoyed in or in relation to a Commonwealth place that is not shared by the remainder of the State in which it is located.
The nature of the power of modification conferred by s 8 of the Mirror Taxes Act is a significant pointer in the direction of the conclusions just stated. Modifications may be made for the purpose of enabling an applied law to operate so that the combined tax liability of a taxpayer under the applied law and the corresponding State taxing law is "as nearly as possible the same as the taxpayer's liability would be under the corresponding State taxing law alone if the Commonwealth places in the State were not Commonwealth places" (s 8(4)).
The appellant resisted these conclusions by reliance in particular upon Cameron v Deputy Federal Commissioner of Taxation[114]. In that case, the valuation placed by regulations made under the Income Tax Assessment Act 1915 (Cth) upon livestock differed according to the particular State in which the livestock was found and regardless of any other circumstances. The effect was held to discriminate between States or parts of States within the meaning of s 51(ii) of the Constitution. The appellant submits that, as with the regulations under challenge in Cameron, the criterion which gives rise to differential treatment here is location of the proposed hotel at Tullamarine Airport.
That involves several oversimplifications. The application of the Mirror Taxes Act produces the same revenue outcome as if the site were elsewhere in the State of Victoria. It is true that if the site were a Commonwealth place in another State the Mirror Taxes Act could produce a result differing from that obtained at Tullarmarine Airport. However, this would be a product of the assimilation of the other Commonwealth place to the situation of other localities in the other State in question. The differential outcome would reflect the policy expressed and implemented by s 8(4) of the Mirror Taxes Act. Even if all Commonwealth places, whatever their State location, are to be considered as relevantly "equal", their differential treatment to assimilate them in this way is a proper objective in the sense of the authorities.
The result is that there is no infringement of the prohibition in s 99 of the Constitution.
In argument reference was made to Morgan v The Commonwealth[115]. There the Court held that the references in ss 99, 100 and 102 of the Constitution to any law or regulation of trade or commerce must be read as restricted to laws that could be made under the power conferred by s 51(i)[116]. The correctness of Morgan was challenged but not fully resolved in The Tasmanian Dam Case[117]. The present case concerns a law or regulation of "revenue" not of trade or commerce. Morgan may be put to one side.

[152]

I think the Mirror Taxes Act involves multiple breaches of s 99 of the Constitution. It is a federal law that applies different rules for different parts of Australia. I do not think that it has ever been doubted that a federal law concerned with trade, commerce or revenue that gives an advantage or immunity or imposes a prejudice or burden in one State as the result of applying different rules based on State boundaries or localities gives preference to one or more States or parts thereof over other States or parts thereof.
Section 99 prohibits a federal law concerning trade, commerce or revenue from treating States or parts of States differently when such treatment prefers a State or one of its parts over other States or their parts. By reason of the circumstances that exist in various States or parts of States, a uniform federal law may produce effects which vary from State to State. The jurisprudence of this Court shows that such effects do not constitute preferences within the meaning of s 99 of the Constitution. However, the vice of the Mirror Taxes Act is not so much its effect - although that also breaches s 99 because it enables some States to raise more revenue than other States - but in laying down different rules for different States. Surely, no one would seek to say that s 99 would not be breached by a federal income tax law that imposed a tax of 20% on income in New South Wales, 10% in Queensland and 40% in Western Australia or a federal law that imposed different rates of excise duty on the same classes of goods depending on the State of manufacture. Yet, mutatis mutandis, that is what the Mirror Taxes Act does in applying stamp duty legislation. As a federal law, it applies different rates of tax to transactions and agreements in different States. For the purpose of s 99 of the Constitution, it is irrelevant that the object of the Mirror Taxes Act is to ensure that State residents pay the same stamp duties whether the subject of the duty concerns a Commonwealth place or some other place in the State. Consequently, it breaches s 99 of the Constitution.

[249]

The purpose of this extended discussion of the cases and reasoning of Justices of this Court concerning s 99 is to show that, apart possibly from a dictum by Starke J in Elliott[183], there is nothing in the case law that supports the claim that the Mirror Taxes Act does not contravene s 99. To the contrary, the decisions in Cameron and James show that the Act does breach s 99. And, properly understood, I do not think that Starke J intended any more than that licensing systems do not necessarily constitute preference. Despite the considerable division of judicial opinion in the cases to which I have referred, one proposition appears uncontentious: a law of the Parliament that imposes different rates of taxes by reference to State boundaries breaches s 99 of the Constitution. That view is supported by all Justices of the Court including Starke J. My own view is that the construction that Dixon and Evatt JJ have placed on s 99 is the correct construction of that constitutional provision. But even if the view of Isaacs J as expressed in Barger is accepted, the Mirror Taxes Act breaches s 99 of the Constitution. It is a law of the Parliament that imposes differential rates of stamp duty in respect of instruments by reference to their locality in a particular State. In New South Wales, Queensland and Western Australia the lease duty rate is 0.35%. In Victoria it is 0.6% and in South Australia and Tasmania 1%. The rate of duty on any premium also varies from 0.35% in New South Wales and 1.2% in Victoria to 4.85% in Western Australia. Thus by operation of laws of the respective States the lessee of land in New South Wales, Queensland and Western Australia pays less duty than a person who leases land in Victoria, South Australia, Tasmania or in the case of duty on premiums, Western Australia. By the Mirror Taxes Act, the federal Parliament maintains this distinction in respect of Commonwealth places. The lessee of land in a Commonwealth place in New South Wales pays less duty than the lessee of such a place in Victoria. The federal legislation gives a clear preference to residents of New South Wales who must pay stamp duty on instruments concerned with Commonwealth places over those who reside in other States and must pay stamp duty on such instruments. This is done by a law of the Parliament by reference to the State in which the land is located.
Questions of preference under s 99 of the Constitution are not synonymous with the legal notion of discrimination although no doubt preference involves discrimination in one sense in treating one State or part differently from another State or part[184]. The correct meaning and application of s 99 is not informed by the jurisprudence that has developed in respect of discrimination in equal opportunity law in the last 50 years. In s 99, "give preference" means no more than give advantage or priority. It is not concerned with the objective or motive of the giver. The differential treatment of States or parts of States cannot be justified by saying that the difference is the product of a distinction which is appropriate and adapted to the attainment of some proper objective of the Parliament of the Commonwealth. The mischief to which s 99 is directed is not the fairness or unfairness of the effect of any preference given in a particular case. The section is contravened by the mere giving of a preference referable to the State or part of a State to which the law applies. Under the Mirror Taxes Act, two identical transactions, occurring in Commonwealth places, may be assessed for different amounts of stamp duty, solely by reference to the State in which the Commonwealth place is located. The relevant "equals" to compare for the purpose of identifying a preference in this case are those transacting in Commonwealth places, not those transacting in each State. That is because s 99 is concerned with preferences given by the federal Parliament. The federal law cannot prefer one Commonwealth place over another by reference to the State in which it is located. And yet that is what the Mirror Taxes Act purports to do. Consistently with s 99, the Parliament of the Commonwealth cannot levy an income tax of 65 cents in the dollar on all residents of Australia except those residing in the Kimberley or Cape York regions although the law has the worthy objective of encouraging development in remote areas of Australia. What s 99 says is that the Commonwealth "shall not ... give preference". It must not prefer one State or part of a State over another State or any part thereof.
Those who made the Constitution were well aware of the distinction between preference and discrimination, as they made plain in enacting s 102. They were also well aware that, in some cases, preference or discrimination might operate unduly, unreasonably or unjustly. That is why in s 102 the Parliament was empowered to make laws forbidding any preference or discrimination as to railways that was "undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways". They made no such qualification in s 99.
Nor is the application of s 99 determined by reference to whether any benefit or advantage enjoyed in relation to a Commonwealth place is not shared by the remainder of the State in which it is located. According to four Justices of this Court in Morgan v The Commonwealth, s 99 "does not purport to deal with preferences within a single State"[185]. The issue is not whether the Mirror Taxes Act produces the same revenue outcome as would be the case if the Commonwealth place was not a Commonwealth place. It is whether a law of the Parliament lays down a rule for Victoria that is different from the rule that it lays down in the same Act for other States and that rule benefits Victoria or the other States. If it does, it is invalid whatever its objectives or motives. Section 99 is concerned with the character of the law or regulation raising revenue and not with the objects of that law[186]. As Isaacs J pointed out in Cameron[187]:

[253]

Questions 1, 2(d), 3(a) and 3(b) should be answered: "Yes".
Questions 2(a), 2(b), 2(c) and 2(e) should be answered: "Unnecessary to answer".
Question 4 should be answered: "The Commissioner of State Revenue of the State of Victoria".
The matter should be remitted to a single Justice for any remaining issues to be dealt with accordingly.
KIRBY J. A case stated[188] asks questions of the Court concerning the constitutional validity of the Stamps Act 1958 (Vic) ("the Stamps Act")[189] and of the Commonwealth Places (Mirror Taxes) Act 1998 (Cth) ("the Mirror Taxes Act").
The Mirror Taxes Act was enacted by the Federal Parliament in response to the decision in Allders International Pty Ltd v Commissioner of State Revenue (Vict)[190]. By that decision, this Court held that a State revenue law, imposing stamp duty upon a lease or agreement to lease with respect to part of a Commonwealth place[191], was invalid. This was because s 52(i) of the Constitution reserves to the Federal Parliament "exclusive power" to make laws with respect to Commonwealth places.
The Commonwealth place in Allders was a portion of the Melbourne (Tullamarine) Airport. The State revenue authority was the Victorian Commissioner of State Revenue ("the Commissioner"). The dispute concerned the liability to tax of an instrument relating to the use of portion of the airport. In these proceedings, the same Commonwealth place is involved. The Commissioner again asserts his right to recover the revenue. Again, an instrument of lease is involved which, under the Stamps Act, would otherwise be liable in Victoria to assessment to duty in a substantial sum[192]. But now, the Commissioner relies for the validity of his assessment not only on the Stamps Act but also on the Mirror Taxes Act, a federal Act.
The scheme of the latter conforms to an announcement by the Federal Treasurer that federal legislation was "necessary to protect State revenues following the Allders decision"[193]. The legislation was described as forming "part of an Inter-jurisdictional Taxation Agreement (IJTA) … settled between the Commonwealth, States and Territories"[194]. The Treasurer said[195]:

[265]

There is no express foundation in the Constitution (or, so far as it would help, any legislation) to support such an impediment to argument. Indeed, the text of the Constitution is inconsistent with the requirement. This Court is the ultimate guardian of the judicial power of the Commonwealth[214]. It derives its existence and functions from the Constitution and owes its duty to it. If the Constitution requires a result in a relevant contested matter, no rule of practice of the Court can impede that outcome. Judges of this Court have repeatedly stated that constitutional doctrine stands on a different basis to other holdings, so far as the requirements of the law of precedent are concerned[215]. In part, this is because the Constitution is itself the source of legal authority and thus is placed apart. In part, it is because of a recognition (affirmed by history) that different generations read the Constitution in different ways according to the perceptions of different times[216]. The duty of the Justices to the Constitution is individual. No group or number of them can impede the discharge of that duty by one or a minority of them.
The supposed requirement of leave is an impediment to argument. Without argument, effective persuasion about error may be impossible. Procedural requirements are sometimes convenient for courts. However, in proceedings involving the meaning of the Constitution, it is erroneous to allow convenience to overwhelm the possibility of constitutional enlightenment. Courts have other means to prevent legal representatives or parties from wasting their time. Such means, and not a supposed threshold obligation to obtain "leave" from a majority, are the proper ways to prevent repetition of futile arguments.
As a consequence of the decision of the majority, this Court did not hear the oral arguments of the parties and interveners addressed to the first question in the stated case. For those who consider the procedure necessitating leave to be constitutionally valid, it thereby became unnecessary to make further reference to the primary argument of the Commissioner. However, because I do not take this view, I am required to state, in summary at least, why I consider that question 1 should be answered "Yes". I must do so on the basis of the written arguments.
Worthing and Allders are correct: The decision of this Court in Worthing was reached by a slim majority[217]. The reasons for each viewpoint were "finely balanced"[218]. However, neither of these considerations is an argument of incorrectness. It is the nature of constitutional interpretation that it will often produce contested, closely divided, outcomes[219] and be open to later revision.
I do not accept that the determinative opinion of Walsh J in Worthing[220] was so significantly different from those of the other judges of the majority as to cast doubt on the emerging principle. Nor do I accept (as the Commissioner suggested) that the majority in Worthing overlooked the primary question of characterisation of the State law, that is, whether it was a law "with respect to" a Commonwealth place. Given that characterisation of laws is such a common function performed by this Court, it would be astonishing if it had been misunderstood. Clearly, the task was one of classifying the law in question to determine whether it invaded the "exclusive" legislative powers marked out for the Federal Parliament[221]. This is the way that the majority in Worthing described what they were doing[222]. It was affirmed in a case that quickly followed[223]. It is the way the decision in Worthing was described and applied in Allders[224]. As I see it, Worthing involved nothing more than giving effect to the language of "exclusive" legislative power contained in s 52(i) of the Constitution.
It is true that, when Worthing was decided, it came to many as a surprise. But this is not an unusual feature of constitutional adjudication. Assumptions are made and then exploded when the light of analysis is shone on a corner of the Constitution not previously subjected to scrutiny[225]. By the time the present case came before this Court, the principle in Worthing appeared well and truly entrenched. It has been followed by the Court in numerous cases[226]. In others, it has been referred to without doubt, or assumed and applied[227]. Against the correctness of the principle of Worthing, no voice has since been raised in this Court[228]. Nor has doubt been stated in any other court.
The supposed "inconveniences and complications" which were voiced in Worthing as a reason for resisting the interpretation that the majority adopted have, as Windeyer J predicted, proved "less serious than would be those that would come from any other of the suggested constructions of s 52"[229]. After Worthing was decided, the Commonwealth Places (Application of Laws) Act 1970 (Cth) was enacted. That federal Act was supplemented by associated State legislation[230]. Together these laws alleviated most of the "inconveniences" whilst faithfully upholding the language of the Constitution. To overrule Worthing would now require unthreading the federal and State legislation that ensued. It would necessitate change of many judicial decisions, legal instruments and private actions made on the basis of the Worthing construction of the requirements of s 52(i).
In the end, it is impossible to escape the force of the word "exclusive" appearing in s 52(i). That word expels a State Parliament, including by the enactment of a law cast in general terms, from making a law "with respect to the conduct of persons within a place, or transactions there"[231]. And that is that.
Conclusion: first question: It follows that the answer to the first question in the stated case is "Yes". The Stamps Act is invalid in so far as, of its own force, it purports to sustain the assessment of Permanent to duty in respect of the lease on and in the Commonwealth place in question.
This is a conclusion that I would reach on my consideration of the written submissions of the parties. Necessarily, I did not have the advantage of more than a few minutes of oral argument addressed to the point, and then limited to the argument for the Commissioner. One day the issue may return. In constitutional discourse, few rulings can be said to be forever final. But the prospects for a reversal of Worthing appear bleak.

[271]

From the figures and estimates in the Table, it is clear that the sum payable from the federal Consolidated Revenue Fund to "the State concerned"[234], namely Victoria, in respect of the same instrument and transaction liable to duty at the same time is substantially more (by $508,318) than the State of New South Wales would receive from the federal Consolidated Revenue Fund in respect of an identical transaction.
It is true that the amount payable to Victoria would, in its turn, be less than the amount payable to the States of Queensland, South Australia, Western Australia and Tasmania in respect of an identical transaction and instrument at the same time. However, in terms of s 99 of the Constitution, it is sufficient that the party complaining of non-compliance should be able to show "preference to one State … over another State". Permanent submitted that this was manifest in the payment under the Mirror Taxes Act to the State of Victoria of a sum less than would be paid in otherwise identical circumstances to the States of Queensland, South Australia, Western Australia and Tasmania.
In any case, Permanent submitted, correctly in my view, that the validity of the Mirror Taxes Act had to be considered by reference to the entire scheme. By virtue of the facts demonstrated in the Table, it argued that the impugned federal law expressly provided for differential federal payments as between the several States of the Commonwealth. Although elsewhere in Ch IV of the Constitution provision is envisaged for differential "financial assistance" to particular States "on such terms and conditions as the Parliament thinks fit"[235], no such entitlement exists in the particular nominated case of "any law or regulation of trade, commerce, or revenue"[236]. On the contrary, in such a case (of which this was one) Permanent argued that differentiation amounting to "preference to one State … over another" was strictly forbidden. The Mirror Taxes Act offended that prohibition.
The applicability of s 99 to s 52(i): It is not as if the drafters, and those advising the Commonwealth in the preparation of the Mirror Taxes Act, were unaware of (or overlooked) the "preference" problem presented by s 99. As I have shown, careful attention was paid to the strict requirements of s 81, also appearing in Ch IV, providing for "revenues" of the Commonwealth to be received into the one Consolidated Revenue Fund and to be appropriated therefrom. The requirements of s 81 were duly complied with. So why did the drafters not conform with the requirements of s 99 of the Constitution, on the face of its language equally stringent?
The answer to this question is found not in some artificially narrow construction by those advising the Commonwealth of the scope and operation of s 99 (or of the word "preference" appearing there). The advice was that s 99 of the Constitution had no application at all to a law made pursuant to s 52(i), as the Mirror Taxes Act purported to be. The theory of this advice was that the Bill that became the Mirror Taxes Act concerned a subject upon which the Federal Parliament had "exclusive power" of legislation. It was therefore for that Parliament, in effect, to do as it pleased without having to comply with a provision such as s 99.
One can see the glimmer of a textual foundation for this proposition, rooted in the word "exclusive" and in the notion that, in such matters of "exclusive" federal concern, the Parliament was unconstrained by the vexing limitation imposed to protect the several States in respect of disbursements from the federal Consolidated Revenue Fund. Such a view might be reinforced by comforting notions that, after all, the federal law in question was doing no more than giving back to the States what would have been their revenue, but for the troublesome interposition of s 52(i) and the decision of this Court in Allders[237].
Seeking to justify the apparent departure from the constitutional requirement of equal disbursement of revenue amongst the several States out of the one Consolidated Revenue Fund pursuant to federal law, the explanatory memorandum circulated with the Bill that became the Mirror Taxes Act was quite clear[238]:

[274]

The Commissioner and interveners (including the Commonwealth) urged acceptance of this reasoning. However, it is flawed. It must be rejected. It is inconsistent with the plain words of the Constitution, with that document's structure and purposes and with the Commonwealth's practice in other respects.
As to the words, s 52 (like s 51) opens with the qualifying phrase "subject to this Constitution". It may be that the structure of the Constitution would have imported such a limitation in any case. A national constitution expressed in relatively brief language must be read as a whole. The several parts must be integrated with each other so far as the context allows. However, in the case of s 52 the qualifying phrase is expressly stated. There is no reason, either in the language or context of s 99, if it otherwise applies, to exclude it from controlling laws made under s 52. On the contrary, so far as s 52 supports a law of "revenue" (the subject matter of s 99) in respect of a Commonwealth place, the limitation imposed by s 99 applies, in terms, to a law made pursuant to that section.
The purpose and history of s 99: The purpose and history of s 99 reinforce this conclusion. It is a provision in a crucial part of the Constitution that was the subject of fierce negotiation before federation. One of the impediments to federation, that almost prevented its achievement in 1901, was the fear of preferential disbursement of federal revenue to some of the new States, in ways that would be unfair to others. This was, for example, a reason why, in Tasmania, Andrew Inglis Clark, a "primary architect of our Constitution"[239], withheld his support from the final document[240].
At the time of federation, the concern of the founders related to the supposed efficiency of a colonial regime committed to policies of free trade as against protectionism. There was equal concern that smaller, less populous States would be a burden on the larger ones[241]. The proposed federal compact nearly came unstuck several times because Mr George Reid, and those of like persuasion, "compared New South Wales to a teetotaller proposing to keep house with five drunkards"[242]. There would have been no federation, certainly none in 1901, without the acceptance of the provisions in Ch IV of the Constitution, notably s 99.
Sir Robert Garran explained[243]:

[277]

Unlike some provisions in Ch IV, s 99 was neither temporary in its operation, nor limited to endure for a specified interval[244]. Nor was it allowed to fall into desuetude[245]. It was not amended by referendum, as s 105 was to be, so as to remove an application limited by reference to time[246]. It was a permanent, important, governing principle of the Australian federal arrangement. One of the primary objects for the creation of this Court was to uphold that compact. It must be upheld by reference to the text of the Constitution. Where the constitutional charter is clear and applicable, as it is here, it cannot be overridden by intergovernmental agreements and interdependent federal and State legislation[247].
I therefore agree with this much of the conclusion expressed in the joint reasons[248]. Laws made under s 52 of the Constitution are subject to the requirements of s 99. I also agree with the joint reasons that the Mirror Taxes Act is a law or regulation of "revenue" within s 99 of the Constitution. As such, it attracts the prohibition on "preference" by any law of revenue "to one State … over another State"[249].
It follows that the premise upon which the Commonwealth considered that it could ignore s 99 is knocked away. This is a serious result because it seems clear from the quoted passage in the explanatory memorandum that, but for that premise, the federal officers, rightly, perceived great difficulties in the structure and expression of the Mirror Taxes Act. As I shall indicate, those difficulties are real. In the event, they prove fatal.
Apart from anything else, it might have been expected that the error of advice would have been avoided because of the great care, taken elsewhere in the Mirror Taxes Act[250], to conform to the other applicable provision in Ch IV, namely s 81. If a law made under s 52(i) of the Constitution was subject to that provision (as the Commonwealth accepted, provided by its law and conformed to in practice) it is puzzling to imagine how it could have been thought that s 99 would not equally apply. Presumably, it was considered that the rule about the Consolidated Revenue Fund was somehow more fundamental than the rule against giving preference to particular States in laws of revenue. However that might be, mistake there was. It led the drafters of the Mirror Taxes Act into constitutionally forbidden territory.
The impermissible "preference": I now reach the point where I depart from the joint reasons[251]. It may be accepted that the "preference" to one State over another State, appearing in terms of a prohibition in s 99, means more than simply different outcomes in the application of the federal revenue law as between different States[252]. To take the most obvious example, a law of revenue providing for the payment to one State of a sum calculated by reference to the population of that State, the aggregate or per capita incomes of the taxpayers in that State or some like discrimen, would not, as such, offend s 99. That is not the kind of "preference" to which that section is addressed. What is forbidden is "preference" that involves the differential application of the federal law in question in a way that affects the disbursement amongst the States by reference to their character as States (or any part thereof). Differentiation may exist. But if it is created by a federal revenue law, it cannot give "preference". The hallmark of federal laws, so far as they are classified (as here) as laws of "revenue", is that they must be even-handed as between the several States.
In ascertaining the meaning of "preference", as in all matters of constitutional interpretation, the duty of this Court is to have regard to the substance of the impugned law and not, as such, its form[253]. The concern of the Court, in giving effect to one of the comparatively few express prohibitions in the Constitution, must necessarily be to address and uphold its object. It is not, as such, to evaluate the policy that lay behind the impugned law or the drafting in which that policy is expressed.
It does not matter that the intentions of the drafters of the Mirror Taxes Act were pure; that the objects in sight were laudable; that the social justifications for particular State preference were overwhelming; or that the State policy concerns were compelling. All of these are issues that might possibly be capable of resolution by the kind of differentiated financial assistance provided for in s 96 of the Constitution. However, if amounting to "preference", they cannot be allowed in a "revenue" law (of which this is one) conforming to s 99.
Care must be taken against slipping out of the constitutional language appearing in s 99. It makes no explicit reference to "discrimination" or "discriminate". These words appear elsewhere in the constitutional text[254]. However, whilst one can accept that the kind of "preference" which is forbidden carries a pejorative or discriminatory flavour, the eyes should remain fixed on the words of s 99. Those words address attention to a prohibition of a federal law, relevantly, in the giving of "preference to one State … over another State", and doing so "by any law … of … revenue".
The word "preference" is defined in the Macquarie Dictionary[255] as "prior favour or choice", "a practical advantage given to one over others", a "prior right or claim". The New Shorter Oxford English Dictionary[256] defines "preference" to be "[t]he action or an act of preferring or being preferred; … prior choice". In the context of economics, it defines the word as the "favouring of, or an advantage given to, one … over others in business relations; ... the favouring of a country by admitting its products free or at a lower import duty than those of other countries". So the focus of attention is upon affording differential favours or advantages, the existence of a particular favour or advantage being judged in a practical way.
The history that lay behind the Mirror Taxes Act may be understood, as may the object of replenishing an unexpected and sudden shortfall in State revenues consequent upon Allders. Cooperation between the elements of the Commonwealth (federal, State and Territory) is a basic postulate of the Australian Constitution[257]. Such cooperation is to be upheld, so far as the constitutional text permits. However, in this case, we face not an implied constitutional prohibition (as has caused difficulties enough in the past[258]). Section 99 is an express injunction, deliberately adopted as part of the federal bargain upon the basis of which the Commonwealth was established. If the prohibition is enlivened, arguments of convenience melt away. The prohibition must simply be obeyed. This Court must say so. If anything, it is made even more clear in this case because there is a reflection of a somewhat similar prohibition on discrimination in taxation laws in s 51(ii) of the Constitution[259].
Explanations of the "preference": In Cameron v Deputy Federal Commissioner of Taxation[260], Starke J, referring both to ss 99 and 51(ii), said[261]:

[283]

The criteria explained in Cameron have been accepted in later cases[265]. There have been relatively few such cases. Doubtless, this is because, until now, few attempts have been made to enact federal revenue laws containing a provision that selects the place of disbursement of the federal revenue by reference to the tax being higher in one State and lower elsewhere by reference to the same event or happening occurring in the other State. In the past the prohibition in s 99 has been obeyed. On this occasion it has not.
By the Mirror Taxes Act, the State revenue authorities have, pursuant to federal law, been authorised to collect, effectively on behalf of the Commonwealth, and to pay into the one federal Consolidated Revenue Fund, taxes levied in significantly different amounts in relevantly identical circumstances, the sum raised and disbursed to the States by the Commonwealth taking as "its line of demarcation the boundaries of States"[266]. In my view, this would be a forbidden discrimination in taxation within s 51(ii). But more to the present point, in the matter of the federal disbursement pursuant to a revenue law such as the Mirror Taxes Act, it is the giving of forbidden "preference" to one State over another State by such federal law. This is not a mere matter of form. It is the whole substance and purpose and effect of the federal law in question. In its disbursements, it prefers one State over another State[267]. It cloaks the federal Act with State-referred differentiation.
State law can, as State legislators please, differentiate within a State's own borders and concerns in the revenue the State collects from State taxpayers. State law may do so in matters of stamp duty, so that instruments brought to tax have significantly different consequences as between the several States of the Commonwealth. In doing this, there is no offence to the Constitution. But when, as here, the federal legislative power is engaged, the prohibition in s 99 of the Constitution must be obeyed. The Mirror Taxes Act conflicts with s 99. On its face, it offends the Constitution.
Past authority does not save the law: The citation of Elliott v The Commonwealth[268] in the joint reasons does not save the impugned federal law from invalidity under s 99 of the Constitution. As the constitutional text, the history that preceded it and the cases that have applied it[269] show, the imposition of differentiated federal revenue collection and disbursement as between the several States was, and is, a very sensitive federal issue. It is not enough to say that State taxes are different inter se and, therefore, that "discrimination" in the operation of the federal law does not "give preference" as forbidden by the Constitution. The critical words are "shall not ... give preference". It is the latter phrase that must be addressed, not, as such, the concept of "discrimination" which imports different notions[270].
The impugned law does "give preference" when looked at from the perspective of the several States of the Commonwealth, viewed from the standpoint for which the prohibition on giving such preference in revenue laws was provided in s 99. It is certainly so from the perspective of the Australian taxpayers in the several States. It is so directly by reference to their locality in different States. It is so under federal not State law. Obviously, on the face of the federal law, and in its operation by reference to State geography, the payment from the federal Consolidated Revenue Fund "gives preference" to one State over another. The character of the federal law for these constitutional purposes is therefore fixed by the consequences of that federal law as a revenue measure, necessarily burdening and advantaging differentially those subject to it. The constitutional character is not determined by other provisions of other laws of the States.
The rule in s 99 of the Constitution is one fundamental to the requirements of the federal compact. It is addressed to federal lawmaking as such. It is a guarantee not only to the States as political entities but to the people of Australia (the "electors") living in the different States. The provision should not be eroded by this Court, which is duty bound to uphold that compact. Least of all should this be done by reference to judicial dicta concerning other provisions of the Constitution securing other and different purposes.

[285]

Inadmissible justifications: Bereft of the postulated excuse for the impermissible "preference" on the face of the federal law, the Commissioner (and the Commonwealth) argued that there was no "preference" because, viewed as a matter of equalising the position of taxpayers in Commonwealth places with equivalent taxpayers elsewhere within the boundaries of the State concerned, the kind of differentiation forbidden by s 99, by reference to the State discrimen, was not engaged. This argument convinces a majority of this Court[271]. It does not convince me.
The impugned law (the Mirror Taxes Act) is a statute made by the Federal Parliament. It is not, as such, a series of State laws although supplementary laws of the States were enacted to facilitate the impugned scheme. Alone, such State laws would have been incompetent to intrude into the regulation of events or things in or of Commonwealth places. There, the Federal Parliament enjoyed "exclusive" legislative power. Still less could the State laws have disbursed federal revenue from the one Consolidated Revenue Fund in respect of such places. Thus, it is necessary, in judging the federal law against the standard of s 99 of the Constitution, to look to the effect of what it does and the criterion that it selects for its operation.
When this is done, the federal law, in substance and effect, provides for differentiated payment as between the States. It does not address internal State adjustments within the boundaries of the States concerned − as such not a matter of federal legislative power. The Mirror Taxes Act provides for national disbursements to all of the States. It does so by giving federal preferences "to one State ... over another State". Under the scheme of the Constitution a payment would necessarily have to come in the form of an appropriation for the purposes of the Commonwealth from the "one Consolidated Revenue Fund" provided by s 81 of the Constitution. This, indeed, is what the Mirror Taxes Act purports to do[272]. It then provides for the payment to each State of the sums provided. What is important is not, as such, the source and purpose of the payment, for the moneys received by the Commonwealth undoubtedly passed into the Consolidated Revenue Fund. It is in the appropriations from that federal Fund that the prohibition on "preference to one State … over another State" is enlivened. Matters antecedent, excuses and supposed justifications cannot circumvent or avoid the constitutional prohibition on "preference". The Constitution looks to the effect and substance of what the federal law actually does as such a law. And it must be remembered that the source of the legislative power to make the federal law is the exclusive power of the Federal Parliament over legislation with respect to Commonwealth places.
The appeal to the supposed justification of equalising the burden on taxpayers in different States by reference to "the corresponding State taxing law"[273] within those States, so that taxpayers will be "as nearly as possible [subject to the same burden] as [they] would be under the corresponding State taxing law alone if the Commonwealth places in the State were not Commonwealth places"[274], cannot circumvent the prohibition stated in s 99 on preferences in federal revenue laws. So far as the exclusive federal power to make laws with respect to Commonwealth places is concerned, its exercise must conform to the federal constitutional standard. It is not enough that it conforms to the varying standards of the States. The federal standard, for well established reasons, forbids preferences. Those reasons gave rise to s 99 of the Constitution. The Mirror Taxes Act on its face enacts differential preferences as between the States, in the benefits of federal taxation revenue received from the one federal Consolidated Revenue Fund. Such differentiation is forbidden by the Constitution. No amount of explanation or intra-State justification can sustain the offending provisions.
The Commonwealth is a national polity. It is obliged to conform to national standards stated in the Constitution. None of those standards was more important at federation, and few have proved so beneficial since, than the creation by the Constitution of a continental common market and national economy. Within that market and economy, the Commonwealth is obliged, in all of its revenue laws, to avoid giving preferences as between the States. The Mirror Taxes Act only failed to comply with this requirement because it was wrongly assumed that it was exempt from the requirements of s 99. The belated, previously unconsidered, justification now advanced should be rejected.
Overcoming inconvenience: The supposed inconvenience of this conclusion is greatly exaggerated[275]. There were several courses that the Federal Parliament could have adopted, conformably with s 99 of the Constitution, if it wished to offset the fall in State revenues consequential upon the Allders decision without enacting inter-State preferences. It could, for example, have struck a common federal impost upon instruments made in or in relation to Commonwealth places and provided for reimbursement from the fund thereby collected to the States without giving "preference" by reference to the boundaries (or parts) of the States concerned.
Alternatively, it could have devised a scheme to give financial assistance to a State "on such terms and conditions as the Parliament thinks fit" pursuant to s 96 of the Constitution. Doubtless, there were other ways in which the perceived Allders problem could have been solved, if that were the intergovernmental wish. What could not be done was to enact a federal law, such as the Mirror Taxes Act, disbursing federal revenue from the one federal Consolidated Revenue Fund to different States according to a formula giving preference as between them in terms of a criterion expressed by reference to the boundaries of the State concerned.
Conclusion: approach is unconstitutional: This Court should not struggle to "correct" the outcome in Allders. A price of the Federal Parliament's exclusive legislative power to make laws with respect to Commonwealth places is that, in such places, State laws, including State revenue laws, are inoperative by their own force. The attempt effectively to revive them with all their many differences, through a vehicle of federal law, unsurprisingly runs into constitutional difficulties. By its nature, federal legislation normally has a national and not a local operation. If it is taxation legislation, it must refrain from giving preference between States and parts of States. And so far as the federal law is one of revenue, the imposition of preference to one State over another is expressly and emphatically prohibited.
A court such as this must not only give meaning to the constitutional text having regard to its language and history. It must view each decision as a precedent upon which others may build in the future[276]. Any wavering over preferential payments of federal revenue by reference to the criterion of State identification offends text and history. More importantly, it offends a pivotal control on the disbursement of federal revenue enshrined in the Constitution as an express prohibition.
Result: a breach of s 99: The consequence is that the Mirror Taxes Act is invalid on the ground that it is contrary to s 99 of the Constitution. An attempt is made in s 4 of the Mirror Taxes Act to breathe life and "effect" into the Act by particular reference to nominated sections of the Constitution. Necessarily, no such provision can stand against an express constitutional prohibition such as appears in s 99. No statutory attempt is made to do so.
The foregoing reasoning requires that question 2(d) in the stated case be answered "Yes". In the result, Permanent succeeds in its challenge to the purported imposition upon it, under the Mirror Taxes Act, of the duty which the Commissioner seeks to recover. The Act cannot be read down nor can the impost otherwise be held constitutionally valid.

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