Superannuation Fund Investment Trust v. Commissioner of Stamps (S.A.)

Judges:
Barwick CJ
Stephen J
Mason J
Murphy J
Aickin J

Court:
Full High Court

Judgment date: Judgment handed down 8 August 1979.

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Barwick C.J.: I have had the advantage in this appeal of reading the reasons for judgment prepared by my brother Mason . Consequently I have no need to refer to the relevant statutory provisions in any detail or to the submissions made by the parties.

In my opinion, the Superannuation Fund Investment Trust, incorporated by the Superannuation Act, 1976 (Cth) (the Act), is a manifestation of the Crown in right of the Commonwealth; and the fund of which the Trust has the management is wholly the property of the Crown in right of the Commonwealth. Further, property acquired by the Trust for the purposes of the fund becomes on its acquisition the property of the Crown in right of the Commonwealth. I am content to rest these conclusions upon the analysis of the provisions of the Act which my brother Mason has made in his reasons for judgment.

I am unable to agree, however, that the Parliament by this Act has subjected the Crown in right of the Commonwealth and its property to taxation by the States, except in relation to income tax upon the income of the fund which income is, in my opinion, quite clearly the property of the Crown in right of the Commonwealth.

Quite apart from the effect of the federal nature of the Constitution, a legislative intention to subject the Crown and its property to taxation must be found in the legislation in express words or by necessary implication. That is the established position at common law. Bearing in mind our federal structure, a legislative intent on the part of the Parliament to subject the Crown in right of the Commonwealth to taxation by a legislature of a State must, in my opinion, be unambiguously discoverable in the language of the Parliament, considered in the light of

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the subject matter of its legislation and the evident policy it discloses. This is so, in my opinion, quite apart from the presence and operation of sec. 114 of the Constitution.

There is nothing in the nature of the subject matter of the Act or its policy of providing financial benefit to its employees and such other persons who may be included within its ambit, which in the least suggests to my mind any reason why the Parliament should have subjected the Crown or its property to State taxation. The legislative purpose is, if anything, the augmentation of the fund rather than benefaction to the State Treasuries. The subject matter and the policy of the Act, in my opinion, tell against the implication of any such intent of the Parliament.

Can an implication of any such intent be made from the presence in the Act of sec. 42(5)? And, in particular, is that a necessary implication, or does the presence of the section involve an unambiguous expression of such an intent?

Section 42(5) purports to exempt the income of the fund not only from State taxation upon income but from Territorial taxation upon income. The idea that but for sec. 42(5) the income of the fund, being the property of the Crown, would have been liable to income tax under a law of a Territory of the Commonwealth surely must indicate the ultra cautious and unnecessary nature of the provision. Quite apart from the provisions of sec. 42(5) of the Act, neither a State nor a Territory of the Commonwealth could, in my opinion, subject that income to taxation. The presence of sec. 42(5) in the Act must, in my opinion, be attributed to an abundance of caution, rather than as an expression of intent that the Crown in right of the Commonwealth and its property should otherwise be subject to taxation by the States and by the Territories: or perhaps to some uncertainty on the part of the draftsman as to whether or not the Trust was a manifestation of the Crown. But, if so, that uncertainty would not justify the conclusion that there was a legislative intention to subject the property of the fund, if it did represent the Crown, to State taxation. To take from that section and its presence in the Act a positive indication that the Crown in right of the Commonwealth was to be in other respects subject to taxation by the States is, to my mind, an unwarranted conclusion. Expressions of judicial opinion in the decided cases are not wanting which would, at least, discourage inferring a positive intent to subject the Crown and its property to taxation merely from the presence in a statute of such a provision as sec. 42(5): see, e.g.,
Mayor of Weymouth v. Nugent 6 B. & S. 22 at p. 35; 122 E.R. 1106 at p. 1111 ;
Coomber v. Justices of the County of Berks. (1883) 9 A.C. 61 at p. 66 ;
Hornsey Urban District Council v. Hennell (1902) 2 K.B. 73 at pp. 80-81 .

I find myself quite unable to infer from the provisions of sec. 42(5) of the Act that the Parliament intended that the Crown, and its property other than the income of the fund acquired for the purposes of the fund, should be subject to taxation by the States and the Territories. Certainly I would find it impossible to think that there was a necessary implication in that sense to be found in that provision or elsewhere in the Act, there being no express words in the Act subjecting the Crown or its property to taxation by the States and Territories.

If stamp duty were payable it would be payable by the Commonwealth. It is an exaction falling on the Commonwealth. Further, in form it is a tax upon the document by which the Commonwealth acquires the land to which the instrument relates. It falls upon the document when the document has itself become the property of the Commonwealth. Unless the document is stamped, i.e., the tax upon it paid, its function as a document is largely, if not indeed entirely, stultified (see sec. 27 of the Stamp Duties Act, 1923 as amended (S.A.)). Thus, even in the most technical sense, the duty, in my opinion, is a tax upon the property of the Commonwealth. It falls squarely, in my opinion, within the operation of sec. 114, which is expressed in universal terms, ``any tax on property of any kind''.

Section 114 requires the consent of the Parliament to the imposition of a tax by a State upon Commonwealth property. All that I have said in relation to the implication of an intent to subject the Crown in right of the Commonwealth to State taxation applies equally, if not more forcefully, to my inability to find in the Act a consent by the

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Parliament to the taxation by the State of its property.

Thus, whether we were considering the matter as under the general law alone, or having in mind the federal structure of the Constitution or in relation to sec. 114, the stamp duty would not, in my opinion, be exigible in this case.

In my opinion, the proper conclusion in this appeal is that the Stamp Duties Act does not apply to instruments of transfer accepted by the Superannuation Fund Investment Trust of property acquired for the purposes of the fund.

I would allow the appeal.