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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Murphy J.: Whether or not the Superannuation Fund Investment Trust is ``the Commonwealth'' is not decisive of this case. The decision rests on three points. First, the Superannuation Act 1976 (Cth) evinces an intention that the Trust is liable to pay stamp duties under State laws on instruments to which it is a party. Section 45 of the Act exempts the income of the Fund from taxation under Commonwealth, State or Territorial laws. The implication is, therefore, that the Trust is liable to other forms of taxation. This is fortified by sec. 173(3) which provides that an instrument which an authorized person certifies to have been made executed or given by reason of, or for a purpose connected with, the operation of Div. 2 of Part XII (Transitional Provisions - Existing Superannuation Fund) is not liable to stamp duty.

Second, sec. 160(1) of the Act provides that ``The costs of the administration of this Act, including the costs of and incidental to the management of the Fund by the Trust, shall be paid out of moneys appropriated from time to time by the Parliament for the purpose''.

Any stamp duty payable is a cost of and incidental to the management of the Fund by the Trust. Section 160(1) shows that imposition of any such tax by a State is with the consent of the Parliament of the Commonwealth. There is, therefore, no breach of sec. 114 of the Constitution, which provides that ``A State shall not, without the consent of the Parliament of the Commonwealth,... impose any tax on property of any kind belonging to the Commonwealth...''. Therefore, even if the Trust is the Commonwealth and the Stamp Duties Act 1923 (S.A.) as amended, imposes tax on its property, there is no breach of sec. 114.

Third, even if the Trust is the Commonwealth, there is no exemption provided for it in the Stamp Duties Act . The exemption in favour of ``His Majesty'' refers only to the Crown in right of, or the Government of, South Australia. I agree with what Mr. Justice Mason says on this aspect.

It follows that the appeal should be dismissed.