Berwick Limited v. R.R. Gray, Deputy Commissioner of Taxation.

Judges: Barwick CJ
McTiernan J
Mason J

Jacobs J
Murphy J

Court:
Full High Court

Judgment date: Judgment handed down 30 March 1976.

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Jacobs J.: The argument for the appellant mistakes the nature of Commonwealth power. The power of the Commonwealth Parliament to legislate upon the subject matters stated in the Constitution is plenary in the fullest sense of that word. Once a law is found to be a law on the particular subject matter and once the subject matter is found to be one of Commonwealth power no other nexus or relationship between the law and the subject matter of power needs to be established. The Parliament is sovereign. In this respect the test of power applicable to the laws of the Commonwealth differs from the tests of power applicable to the laws of the States and applied in such cases as
Commr. of Stamp Duties (N.S.W.) v. Perpetual Trustee Company Limited (Watt's case) (1926) 38 C.L.R. 12 ;
Commr. of Stamp Duties (N.S.W.) v. Millar (1932) 48 C.L.R. 618 ;
Broken Hill South Limited v. C. of T. (N.S.W.) (1936) 56 C.L.R. 337 , and
Johnson v. Commr. of Stamp Duties (1956) A.C. 331 . The impugned legislation is a law with respect to taxation within the meaning of sec. 51(ii). It is also a law with respect to the Territory of Norfolk Island within the meaning of sec. 122. It is therefore within Commonwealth power.

As to the only further ground of appeal which was argued, namely, that sec. 162 of the Income Tax Assessment Act 1936-1973 (Cth.) did not empower the Commissioner to require the appellant to furnish a return of the whole of its income for the year ended 30th June 1973 I agree with the conclusion of Mason J. and with his reasons for that conclusion.