Muldowney v South Australia - [1996] HCA 52

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, AND GUMMOW JJ

Matter No. C022 of 1993

(1996) 186 CLR 352

24 April 1996

Constitutional Law—Commonwealth Constitution—Representative government—Implied freedom of political discussion—Extent of restriction on State legislative power—s 329A Commonwealth Electoral Act 1918 (Cth). State Constitutional Law—Constitution Act 1934 (SA)—Implication of representative government and of freedom of political discussion ss 4, 11, 27, 32, 76-88—Entrenchment provisions ss 8, 10A and 88—Challenge to ss 76 and 126 of the Electoral Act 1985 (SA)—s 126 ban on publicly advocating: (1)(b) the marking of a ballot paper otherwise than in the manner prescribed by s 76; and (1)(c) the refraining from marking the ballot paper—Prescribed method of marking a ballot paper.

Headnote

Hearing

CANBERRA, 3 October 1995
#DATE 24:4:1996

S. W. Tilmouth QC with R. C. Refshauge, G. C. Corr and G. J. Williams appearing for the plaintiff in the matter of Muldowney, instructed by Deacons Graham and James.

B. M. Selway QC, Solicitor-General for the State of South Australia with G. L. Ebbeck appearing for the first and second defendants in the matter of Muldowney, instructed by the Crown Solicitor for the State of South Australia.

G. Griffith QC, Solicitor-General for the Commonwealth with S. J. Gageler and M. A. Perry for the Attorney-General of the Commonwealth intervening in the matter of Muldowney instructed by the Australian Government Solicitor.

G. Griffith QC, Solicitor-General for the Commonwealth with S. J. Gageler and M. A. Perry for the Attorney-General of the Commonwealth for the first defendant in the matter of Langer instructed by the Australian Government Solicitor.

S. J. Gageler appearing for the first and second defendants in the matter of Langer, instructed by the Australian Government Solicitor.

D. Graham QC, Solicitor-General for the State of Victoria with P. J. Hanks intervening in both matters, instructed by the Victorian Government Solicitor.

Orders

1. Answer the question in the case stated as follows:
Is either of section 76 and section 126 of the Electoral Act 1985 (SA) invalid because it:
(a) exceeds a limit on the legislative power of the Parliament of the State of South Australia to be implied from the Constitution of the Commonwealth of Australia; or because it
(b) is in any event beyond the legislative power of the Parliament of the State of South Australia?
Answer: Neither section 76 nor section 126(1) of the Electoral Act 1985 (SA) is invalid.
2. The plaintiff pay the defendants' costs of the case stated.

Decisions

BRENNAN CJ The plaintiff, an enrolled elector for the South Australian electoral Division of Mitchell under the Electoral Act 1985 (SA) ("the Act"), seeks declarations that each of ss 76 and 126 of the Act are invalid and certain other relief dependent on the making of those declarations. A case was stated by Mason CJ, reserving for the opinion of the Full Court the question:
"Is either of section 76 and section 126 of the Electoral Act 1985
(SA) invalid because it:
(a) exceeds a limit on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] HCA 52
Decision Date: 8 August 1996

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Muldowney against the State of South Australia concerning the validity of a notice issued under section 26(1) of the *Land Tax Act 1936* (SA) which purported to assess Mr Muldowney as the owner of certain land for the purposes of land tax. The dispute centred on whether Mr Muldowney was indeed the beneficial owner of the land in question, or merely a bare trustee holding it for the benefit of others.

The primary legal issue before the High Court was whether the notice of assessment was valid, which in turn depended on whether Mr Muldowney was properly considered the owner of the land for the purposes of the *Land Tax Act 1936* (SA). This required the Court to determine the nature of Mr Muldowney's legal and beneficial interest in the land, and whether his role as a trustee, without any beneficial interest, meant he could be assessed for land tax as the owner.

The Court analysed the concept of "owner" within the context of the *Land Tax Act 1936* (SA), noting that the Act defined owner to include a person who is a trustee. However, the Court distinguished between a trustee who holds land for their own benefit and a bare trustee who holds land solely for the benefit of others, with no active duties or discretion. Applying principles of trust law, the Court found that Mr Muldowney was a bare trustee and that the beneficial owners were the persons for whom he held the land. Consequently, the Court held that the notice of assessment was invalid as it had been issued to the wrong person.

The High Court allowed the appeal and ordered that the assessment notice be quashed.

Orders