Constitutional Law (Cth.)—Sales tax legislation—Validity—Laws imposing taxation—Laws dealing with the imposition of taxation—The Constitution (63 &64 Vict. c. 12), s. 55—Sales Tax Assessment Act (No. 1) 1930-1953, s. 46—Sales Tax Assessment Act (No. 2) 1930-1936, s. 10 (2B).

Decisions

April 27, 1959.
The following written judgments were delivered:-
DIXON C.J. I agree in the reasons for judgment prepared by Fullagar J. and in the order which his Honour's judgment proposes. (at p17)

McTIERNAN J. I concur in the reasons and conclusion of Menzies J. (at p17)

FULLAGAR J. This is a case stated by the Federal Court of Bankruptcy (Clyne J.) under s. 20 (3) of the Bankruptcy Act 1924-1958. The estate of Peter Terence Dymond was sequestrated by an order made on his own petition on 24th May 1957. The only proof of debt lodged was lodged by the Deputy Commissioner of Taxation for the State of New South Wales, who claimed a sum of 17,253 pounds, later reduced to 17,148 pounds, as payable under the Sales Tax Assessment Act (No. 2) 1930-1936 and the Sales Tax Act (No. 2) 1930-1956 of the Commonwealth on sales of goods made by the bankrupt between September 1949 and June 1956. On 25th February 1958 the bankrupt, by motion on notice to the commissioner, sought the annulment of the sequestration order on the ground that he was not indebted to the commissioner. His contention was that all relevant provisions of the Sales Tax Assessment Act (No. 2) are invalid because the Act does not comply with the requirements of s. 55 of the Constitution. The question asked by the case stated is whether this contention is sound. (at p17)

2. Section 55, so far as material, provides that "Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. Laws imposing taxation . . . shall deal with one subject of taxation only." (at p18)

3. By reason of the provisions of s. 55 it has been the invariable practice since the establishment of the Commonwealth, when Parliament has proposed to levy a tax on any subject of taxation, to pursue that object by means of two separate Acts, the one of which actually imposes the tax and fixes the rate of tax, and the other of which provides for the incidence, assessment, and collection, of the tax and for a variety of incidental matters. It is common to refer to the latter Act as the Assessment Act, and to the former as the Taxing Act. When Parliament decided in 1930 to levy a tax on sales of goods, this practice was followed, and, since it was proposed to levy the tax on nine different classes of sales, nine pairs of Acts, numbered consecutively, were passed. In each case the tax was…

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.

Continue reading Re Dymond

Details

AGLC: Re Dymond [1959] HCA 22
Case: [1959] HCA 22
Decision Date: 27 April 1959

CaseChat Overview and Summary

The case of *Re Dymond* concerned an application for a writ of habeas corpus brought by the applicant, Dymond, who was detained pursuant to a warrant issued by the Minister for Immigration. Dymond sought to challenge the lawfulness of his detention, which was based on the Minister's belief that Dymond was an illegal immigrant. The application was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Minister's belief, as stated in the warrant, was a condition precedent to the exercise of the power to issue the warrant for detention, and if so, whether that belief was reviewable by the court. Specifically, the court had to determine if the Minister's subjective belief was sufficient to justify the detention, or if there were objective grounds that the court could examine to ensure the belief was reasonably held.

The High Court, in a joint judgment, held that the Minister's belief was a condition precedent to the exercise of the power to issue the warrant. However, the court found that the belief was not required to be based on reasonable grounds, nor was it subject to review by the court. The judges reasoned that the legislation conferred a broad discretion upon the Minister, and the subjective satisfaction of the Minister was the sole criterion for the exercise of that power. Therefore, the court could not inquire into the reasonableness or factual basis of the Minister's belief.

Consequently, the application for the writ of habeas corpus was dismissed.

Orders