Superannuation Fund Investment Trust v. Commissioner of Stamps (S.A.)
Members: Barwick CJStephen J
Mason J
Murphy J
Aickin J
Tribunal:
Full High Court
Stephen J.: The Superannuation Fund Investment Trust is a body corporate constituted under the Superannuation Act 1976 (Cth). It consists of a chairman and two members appointed by the Governor-General and its function is to manage the Superannuation Fund created by that Act, for that purpose attending to investment of the moneys of the fund.
The Trust, by way of investment of moneys of the Fund, purchased from separate vendors three parcels of land in South Australia, on each of which was erected a shopping centre or supermarket. In March 1977 three instruments of transfer of these properties to the Trust were submitted to the Commissioner of Stamps (S.A.) for his opinion as to whether they were chargeable with any and, if so, what amount of duty. The Commissioner was asked to denote the instruments as not chargeable with any duty but he instead assessed them to duty in a total amount of $1,373,990, being the sum of the ad valorem duty which would be payable on the instruments as conveyances or transfers on sale under the Stamp Duties Act 1923 (S.A.) as amended if they were in fact dutiable instruments under that Act.
The Trust objected to this assessment and, being dissatisfied with the State Treasurer's subsequent confirmation of the Commissioner's assessment, appealed to the South Australian Supreme Court, requiring the Commissioner to state a case accordingly. It had meanwhile paid the duty as assessed, that being a statutory condition of its right to object to the assessment.
The stated case sought answers to two questions:
``(a) Whether the instruments and each of them are chargeable with the ad valorem duty assessed by the respondent.
(b) Whether the appellant is liable to pay stamp duty.''
The Full Court refused, in my view correctly, to answer the second of these questions on the ground that only the dutiability of an instrument and the amount of any duty might properly be made the subject of questions in a case stated under the Act. On this appeal no complaint was made of this refusal. To the first question, whether the instruments were indeed chargeable as assessed, the Full Court answered ``Yes''. Hence the present appeal by the Trust, which contends that this question should have been answered ``No''.
The Trust's contention is that the instruments attract no duty at all, and this not because of any quality of the instruments themselves or of the transactions to which they give effect but solely because it is the Trust which is in each instance the transferee. The argument runs in this fashion: it is common ground that the instruments are conveyances or transfers on sale and that the Stamp Duties Act renders documents of that description liable to stamp duty at ad valorem rates; nevertheless these particular instruments are not liable to stamp duty, either because they fall within an exemption in the Stamp Duties Act in favour of conveyances to ``the Crown'' or because to subject them to a State stamp duty would be to tax property of the Commonwealth without its consent or otherwise unconstitutionally to subject the Commonwealth to a State impost.
Each of these submissions involves, as its first step, the proposition that the Trust be equated to the Crown in right of the Commonwealth. Each submission fails at the outset unless this proposition be made good. The majority in the Full Court of the South Australian Supreme Court rejected this initial proposition. They were, in my view, correct in doing so.
Both the Trust's first submission and its alternative submissions, if followed through to their conclusion encounter interesting and
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difficult questions of law. However, none of these call for any decision by me since, on the view which I have formed, the Trust has failed to make good its initial proposition that it should be equated to the Crown in right of the Commonwealth.Before considering the Trust's initial proposition the relevant provisions of the Stamp Duties Act must be briefly noticed: they provide the particular context in which the character of the Trust becomes relevant. By the interaction of a charging section, sec. 5(1), and of the Second Schedule to the Act, duty is imposed on a variety of documents, including conveyances or transfers on sale of any property. The Second Schedule also describes a wide variety of exempt instruments, some exemptions being applicable only to particular classes of dutiable instruments others appearing in a list of general exemptions from all stamp duties. Only in the list of general exemptions do any exemptions appear which apply to conveyances or transfers on sale. One of these is item 13b, which exempts conveyances ``to the Crown''. The Trust seeks to take advantage of this exemption. It asserts that the three transfers to it are conveyances to the Crown in right of the Commonwealth within the meaning of the exemption.
Any consideration of this initial proposition must take account of the fact that what is here in question is the exercise by the Trust of its function of investing moneys of the Superannuation Fund and the possible application of a State's stamp duty legislation to a document coming into existence in the course of the Trust's exercise of that function. Although I find the proposition to be erroneous when applied to that function as affected by that legislation it does not necessarily follow that in my view the proposition is equally inapplicable to the Trust in all other circumstances: the impact of other legislation or other rules of law upon the Trust, for instance, the effect of the landlord and tenant legislation upon premises acquired by the Trust for use as its offices, might be found to give rise to quite different considerations. That this might be so appears from what was said by the Full Court of the Supreme Court of Victoria in
The Victorian Railways Commissioners
v.
Herbert
(1949) V.L.R. 211
at pp. 213-4
and also by a member of that Full Court,
Fullagar
J., when he sat as a member of this Court in
Rural Bank of New South Wales
v.
Hayes
(1951) 84 C.L.R. 140
at p. 153
, and again in
The Commonwealth
v.
Bogle
(1953) 89 C.L.R. 229
, at p. 267
: to the same effect are the observations of
Kitto
J. in
Wynyard Investments Pty. Ltd.
v.
Commissioner for Railways (N.S.W.)
(1955) 93 C.L.R. 376
at pp. 394-5
.
The Superannuation Act 1976, the legislature to which the Trust owes its origin and from which it takes its particular character, replaced the Superannuation Act 1922 as amended and in doing so made quite radical changes to the general legislative scheme established under the earlier Act for the superannuation of Commonwealth public servants. It is only with aspects of those changes that relate to the present Trust that I am concerned. Under the 1922 Act there was no equivalent to the present Trust. The general administration of the statutory scheme was in the hands of a Superannuation Board which exercised such discretionary powers as the scheme provided for and only one of whose functions it was to invest moneys of the Fund. The 1976 Act introduces a new concept: the general administration of the Act, other than Part III, is given to a Commissioner for Superannuation, but by Part III, entitled ``The Investment Trust and the Fund'', the Trust is established as a body corporate, its membership and proceedings are provided for, a Superannuation Fund is constituted and to the Trust is assigned its management.
There is, then, in the 1976 Act a separation of functions between Commissioner and Trust, the latter being concerned exclusively with management of the Fund. The Trust is, by sec. 41(2), empowered to do all that is necessary or convenient for ``the management of the Fund and the investment under sec. 42 of moneys standing to the credit of the Fund''. The Trust plays no other part in the general statutory scheme of superannuation; it has no concern with contributories, the receipt of contributions or their rate, with payments out of the fund, the extent of benefits or the like.
It is, no doubt, for this reason that the Act contemplates that the three members of the Trust shall have had ``appropriate experience in matters relating to the investment of
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moneys or otherwise in matters relating to the management of moneys'' - sec. 30(5), since to their entirely independent judgment is entrusted the investment of available moneys of the Fund - sec. 42(1). They are given extremely wide investment powers, which extend far beyond conventional trustee investments and are very much wider than were the investment powers of the Board under the 1922 Act. These powers now extend, for example, to the purchase of shares in any company incorporated in Australia and of real estate in Australia - sec. 42(2). The Trust's purchase of the shopping centres and supermarket here in question provides instances of the exercise of this latter power.In the exercise of its power of investment the Trust is neither subject to any control by government nor is it afforded any statutory guidelines. The only injunction is to so manage the Fund that moneys required for payment out of benefits are available for that purpose - sec. 42(1), and ``so far as is practicable'' to ensure observance of the rule familiar to all those acquainted with the investment of Australian superannuation funds, the ``30/20 rule'' - sec. 42(4).
The Act is careful to ensure that, once appointed, appointment being by the Governor-General, the members of the Trust, in carrying out their function as managers of the Fund, will be entirely independent of government. Even the sanction of a member's removal from office before the expiration of his term of appointment is exercisable only for ``misbehaviour or physical or mental incapacity'' or in the event of non-disclosure of pecuniary interest, or of bankruptcy or the like - sec. 35. There is an obligation both to keep accounts and records, allowing the Auditor-General free access to them - sec. 44, and to report annually to the Treasurer - sec. 161, and to furnish him with such information relating to the management of the Fund as he may from time to time require - sec. 163(2). But while these provisions do serve to keep government informed of the activities of the Trust, they impose no limitations upon its complete independence of action.
The members of the Trust are, then, subject to no Ministerial or other control in the exercise of their function as expert investors of the moneys of the Fund, a most significant factor, albeit no more than a factor, in determining whether in the exercise of that function the Trust is to be treated as if it were the Crown in right of the Commonwealth.
I do not treat as conclusive the fact that the Trust is incorporated. While numerous statutory corporations have been regarded as independent of the Crown, there are a number of cases in which the fact of incorporation has not been regarded as depriving the corporation of its right to invoke certain privileges or immunities of the Crown
-
the case of
Public Works Commissioners
v.
Pontypridd Masonic Hall Co.
(1920) 2 K.B. 233
and
Chief Secretary of New South Wales
v.
Oliver Food Products Pty. Ltd.
(1960) 60 S.R. (N.S.W.) 435
provide instances of this. In short, I regard the incorporation of the Trust as a neutral factor.
There is, in my view, also little importance to be attached to the fact that the word ``Trust'' is used to describe the entity which sec. 29 incorporates. I do not regard it as significantly assisting the case for the respondent. No true analogy can, I think, be drawn between the Trust's closely confined statutory power of management of the Fund and of investment of such of its assets as are available for investment and the position of a trustee in a privately constituted trust: I have thus found the attempted identification of some cestui qui trustent of the Fund to be of little profit. The most that can usefully be concluded concerning the Fund, viewed as a going concern, is that both contributors and the Commonwealth are in a practical sense interested in its prudent but profitable management. The current flow of moneys into the Fund derives exclusively from contributions by contributors. These the Commissioner receives and pays into the Fund. At its outset the Fund also received the moneys and assets of the old fund established under the 1922 Act. That fund, unlike the present Fund, was fed from two sources, the Commonwealth as well as contributors making contributions to it - see 1922 Act sec. 8(1). Thus, apart from a component of Commonwealth funds in the initially transferred assets of the old fund the moneys
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which the Trust invests come exclusively from contributors and not out of Consolidated Revenue. On the other hand it is true, as the appellant points out, that the Fund is expressed, by sec. 40(2) of the Act, to form part of the Trust Fund referred to in sec. 60 of the Audit Act 1901 (Cth) as amended and certain provisions of that Act are made applicable to the Fund. However sec. 62B of the Audit Act, which deals with the investment of moneys standing to the credit of the Trust Fund, is expressly stated not to extend to the Fund, and the other provisions of the Audit Act only extend to it subject to the terms of the Superannuation Act itself. That the Fund is thus made to form part of the Trust Fund of which the Audit Act speaks may have consequences from an accounting viewpoint and no doubt emphasizes the extent to which the Auditor-General, already given wide powers by the Superannuation Act , may oversee dealings with the Fund. But to my mind none of this throws much light upon the question now in issue.The respondent relied upon the fact that it is not exclusively public servants of the Commonwealth who are contributors under this superannuation scheme. It is true that a limited class of other employees do participate in it but the substance of the matter is, without doubt, that the Trust is an integral part of a scheme created so that it may provide for the superannuation of Commonwealth public servants.
The appellant relied upon this circumstance as demonstrating an intimate connexion between the Trust's activities and matters central to government. In a sense this is true: but not in the sense in which it has been said in the past that there exist certain traditional functions of central government to which the shield of the Crown will most readily be applicable, functions such as the maintenance of law and order and the defence of the realm. The superannuation of employees, viewed as a subject-matter, has no such inherent governmental character. That in the present case the employer will usually be the Commonwealth is of course a relevant consideration, indeed it is the genesis of this appeal and provides the reason for this superannuation scheme being the subject of elaborate Commonwealth legislation. But it does not of itself appear to me to provide any firm ground for concluding that the legislative intent was that because the Trust had the duty of investing moneys of the Fund it should therefore attract the so-called shield of the Crown.
Apart from these general considerations, arising from the form taken by the legislation, there are certain express provisions of the Superannuation Act which also call for comment. The first relates to sec. 160(1) of the Act. It reads:
``160(1) 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.''
Were the effect of this provision that the Commonwealth became directly responsible for defraying the cost of stamp duty incurred by the Trust in the course of its investment programme, this might be regarded not only as giving rise to a question of the constitutionality of such State imposts but, constitutionality apart, might suggest that, since moneys of the Commonwealth were thus directly involved, the Trust should, in its investment function and in relation to stamp duties, be equated to the Crown in right of the Commonwealth. In my view however this subsection does not have that effect. Outgoings such as conveyancing fees, stamp duty, brokerage and the like, which represent the difference between the gross and the net realization price of investments sold, and between the gross and net cost of investments acquired, are not, I think, to be understood as answering the description of ``costs of and incidental to the management of the Fund by the Trust''.
This is not so much because of any distinction which the Act may perhaps be thought to make between the general ``management'' of the Fund and the more specific ``investment of moneys'' standing to its credit - e.g. in sec. 41(2) and 42(1) and (5), but rather because I would not understand sec. 160(1) as requiring the Trust to adopt in its accounts a method of accounting which such an interpretation would seem to involve. Such a method of accounting would, in the Trust's reporting of
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its investment activities, require it to disregard all out-of-pocket costs involved in the acquisition or realization of investments, the outcome of a year's investment activities being shown net of all such costs. They would presumably be shown separately and be offset by a corresponding Commonwealth contribution. However, as Viscount Simonds said inSun Life Assurance Society v. Davidson (1958) A.C. 184 , at p. 197 , when speaking of the investment fund of a life assurance company and, in particular, of outgoings in the form of stamp duty and brokerage, ``as a matter of accounting such disbursements need not be and generally are not included in the item `expenses of management'''. His Lordship went on to cite, by way of elaboration, a passage from the reasons of the Special Commissioners in which they had said that ``the brokerage and stamp duties payable on the purchase of an investment being not general expenses of conducting the society's business but expenses specifically referable to and only incurred by reason of the purchase, are expenses of the purchase and not expenses of management'' and also expressed a like view concerning such expenses when incurred on the sale of investments. Lord Morton , at p. 202, described brokerage and stamp duty as being expenses ``so closely linked with the transaction of purchase that they may naturally be considered as items in the total cost of a purchase... and not as expenses of management''. Lord Reid, confining his view to the case of stamp duties, said at p. 206 that they formed part of the cost of acquisition of an investment rather than an expense of management. The case, like the earlier decisions to which reference is made in the course of their Lordships' judgments, was concerned with slightly different language from that found in sec. 160(1) and occurring in a different context. But it is for its statements of what was to be regarded as proper accounting treatment of outgoings such as stamp duty incurred in the course of investment management, rather than as precedent authority on the interpretation of sec. 160(1), that I cite it. I conclude that stamp duty incurred by the Trust in connexion with the purchase of investments of the Fund are not ``costs of and incidental to the management of the Fund'' within sec. 160(1). It follows that the provisions of that subsection throw no light upon the present problem.
There are two provisions of the Act, sec. 42(5) and sec. 173(3), which grant exemption from State and Federal imposts. Section 42(5) exempts from ``taxation under a law of the Commonwealth, a Territory or a State'' the income derived from the investment of moneys of the Fund or otherwise from its management. So long as this provision is viewed in isolation from sec. 173(3) it may appear equivocal in effect: its presence in the Act may either be accounted for on the score of abundance of caution, and hence of no significance, or else may be regarded as an indication that, but for this express exemption, the income of the Fund would indeed be assessable income liable to tax. However when viewed, together with sec. 173(3), as representing the only instances in which, in this legislation, the legislature has directed its attention to the impact of revenue laws upon the activities of the Trust and of the Fund, it loses, in large measure, its equivocality. But first I should examine sec. 173(3) and then revert to sec. 42(5).
Section 173(3) forms part of the transitional provisions of the Act, dealing with the transition from old to new superannuation scheme. It reads as follows:
``An instrument or document that an authorized person certifies to have been made, executed or given by reason of, or for a purpose connected with or arising out of, the operation of this Division is not liable to stamp duty or other tax under a law of the Commonwealth or of a State or of a Territory.''
When read in the light both of the meanings given by sec. 170(1) to the defined terms which sec. 173(3) employs and of the effect of the transitional provisions which precede it, it may be seen to exempt from stamp duty instruments which the Chairman of the Trust certifies as having come into existence in connexion with the transfer to the new Fund of the assets and liabilities of the old fund. Unlike sec. 42(5), it deals specifically with stamp duty, relieving the Fund from the burden of such duty on the initial acquisition by it of the old fund's assets. Were there to have been liability to stamp duty on such acquisition, its incidence would, no doubt, have been very substantial.
ATC 4437
That it was thought proper to exempt from all stamp duty such instruments as were necessary to effect that acquisition is understandable, the more so since, in truth, such instruments represented no true dealing in assets but only gave effect to the new Fund's succession to the assets of the old. What is significant, however, is that, whereas the legislature had occasion specifically to advert to the incidence of stamp duty, it did so only in respect of one transaction, the initial acquisition of the assets of the old fund and then only if appropriate certification was effected. The Act is otherwise silent on the matter, saying nothing about any incidence of stamp duty upon instruments which come into existence in the conduct by the Trust of its day-to-day investment activities. In these circumstances, the presence of sec. 173(3) in the Act cannot be attributed to any mere abundance of caution. Had that been the state of mind of the legislature the exemption conferred would scarcely have stopped short at the initial transaction affecting assets of the old fund. Its presence must, I think, be viewed as a recognition by the legislature that, but for it, liability to Stamp state duties might be incurred on the original acquisition of the old fund's assets and the absence of any wider exemption from stamp duties may then be seen as a legislative acceptance of the Trust's liability to such duties when incurred from time to time in the continuing course of portfolio management. Accordingly I regard the provisions of sec. 173(3) as of quite substantial weight in supporting the view that there was no legislative contemplation that the Trust would, by reason of any connexion with the Crown in right of the Commonwealth, be exempt from stamp duty on instruments by which its function of investing moneys of the Fund was carried into effect.
Reverting to sec. 42(5): if, instead of looking at it in isolation, it be viewed together with sec. 173(3) as the expression of the legislature's intent with respect to the impact of revenue laws upon the superannuation scheme its presence in the Act ceases to be equivocal in effect. It cannot then be explained as indicating no more than an abundance of caution. The legislature has, by sec. 173(3), specifically adverted to stamp duties and if sec. 42(5) was inserted only by reason of caution, to say explicitly what was in any event implicit, there would then be no reason to confine it to taxes upon the income of the Fund rather than extending it to exempt from all imposts. So regarded it seems to point no less clearly than does sec. 173(3) to a legislative acceptance of the inherent liability to taxes and duties generally and to a legislative intent that exemption therefrom be granted, but limited to the extent spelt out in sec. 42(5) and 173(3) and no further.
It is in light of each of the foregoing considerations that I have concluded that the Trust is not here to be equated to the Crown in right of the Commonwealth. I have not expressed these various considerations in terms of specific ``tests'' although the precedent authorities provide fertile ground for the development of the concept of such ``tests''. I have, of course, had regard to those authorities, while recognizing that the primary task is that of statutory interpretation rather than any mechanical application of supposed tests. I have placed most weight upon the entire independence of the members of the Trust in relation to their investment function. This appears to me to be of considerable importance and to have been so treated in many of the precedent cases; of which may be cited three decisions of their Lordships:
Fox
v.
Government of Newfoundland
(1898) A.C. 667
, especially at pp. 671-2
,
Metropolitan Meat Industry Board
v.
Sheedy
(1927) A.C. 899
, especially at pp. 905-6
and
Bank voor Handel en Sheepvaart N.V.
v.
Administrator of Hungarian Property
(1954) A.C. 584
especially at pp. 616-618
per Lord
Reid
and at p. 631 per Lord
Asquith
. In this Court like views have been expressed: it suffices to cite decisions in recent years in
Grain Elevators Board (Vic.)
v.
Dunmunkle Corporation
(1946) 73 C.L.R. 70
at pp. 76, 81, 86-7 and 90
, in
The Commonwealth of Australia v. Bogle
(1953) 89 C.L.R. 229 at pp. 281-2 per
Taylor
J., in
City of Launceston
v.
The Hydro Electric Commission
(1959) 100 C.L.R. 654
at p. 663
, and in
Inglis
v.
Commonwealth Trading Bank of Australia
(1969) 119 C.L.R. 334
in the leading judgment of
Kitto
J. To these references may be added the decision of
Crockett
J. in
Taylor
v.
Town and Country Planning Board
(1974) V.R. 173
and the decision of the Court
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of Appeal inTamlin v. Hannaford (1950) 1 K.B. 18 .
The importance of the presence or absence of control by the executive government in ascertaining whether or not a statutory corporation possesses a particular immunity or privilege of the Crown is a consequence of the very nature of that enquiry, concerned as it is with the nexus between the corporation and the Executive. If a corporation is no more than the passive instrument of the Crown, subject in a high degree to control by the Executive, it is appropriate enough that its acts be viewed as those of its master and that it be itself treated as the alter ego of the Crown, enjoying accordingly those immunities and privileges with which the Crown is clothed. If, on the contrary, a statutory corporation is essentially autonomous, its acts being in no sense the outcome of directions by the Executive but truly its own, there will be little reason to clothe it with any of those immunities or privileges. In saying this I do not intend to suggest the need for any examination of the actual extent to which particular actions are or are not the result of the exercise of control by the Executive: it is the existence of the statutory ability to control, or its absence, that is to be looked at.
No doubt in practice a statutory corporation will seldom be either a mere passive instrument or wholly autonomous. If the former its creation would scarcely be worthwhile, departmental officers could serve the purpose just as well. If the latter it would savour of Frankenstein's monster, hence the usual retention of some control, even if it be no more than some power of appointment and removal of the members of its governing body, perhaps the existence of an obligation to make periodic reports to Parliament, or, particularly if public funds are in question, the imposition of audit and financial reporting procedures.
In the usual case of the statutory corporation which is subject to some greater or lesser degree of control by the executive government, conclusions sought to be arrived at on the basis of the extent of control by the Executive will often involve nice questions of degree, particularly in borderline cases. However this is a problem commonly encountered in processes of statutory interpretation and the likelihood of its occurrence does nothing to diminish the relevance of the factor of control.
When, by reference to the extent of control and such other indicia as the constituting statute may provide, a Court embarks upon the task of determining whether, in particular circumstances, a statutory corporation attracts particular Crown immunities or privileges it does no more than seek out the legislative intent. That being the aim, relevant indicia will be as various as the scope of the material in the statute permits. Occasionally, as in the present case, some express reference to immunities may cast light upon that intent: the type of function which the corporation performs, its funding from consolidated revenue, any frustration of its intended purposes which the absence of some immunity or privilege may threaten, all these may aid in divining legislative intent. To dignify any one or more of them by the title of test or rule may do no harm so long as it neither leads to rigid application of particular tests nor obscures the fact that what is in hand always remains the search for legislative intent.
One observation may be made concerning the significance of the type of function which a corporation performs. There has been both judicial and academic criticism of the notion that attaches significance to the allegedly governmental nature of a corporation's function. It may be acknowledged that what is a function appropriate to government may be answered differently in different ages and under the influence of differing social and political theories of the State. However there nevertheless remain some areas, such as those dealt with in
Repatriation Commission
v.
Kirkland
(1923) 32 C.L.R. 1
and in
Goodfellow
v.
F.C. of T.
77 ATC 4086
;
(1977) 13 A.L.R. 203
, of which it may confidently be said that, in an Australian context, they are traditionally the province of central government. Where that is so it constitutes a relevant factor in any consideration of the claim of the statutory corporation in question to the benefit of some Crown immunity or privilege. But, as I have said earlier, I do not regard this factor as of weight in the present case.
On occasions the legislative intent may be a complex one, especially where a
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corporation has conferred upon it a number of quite distinct functions. The intention may be that only some of these should attract the immunities and privileges of the Crown. Again, whether a corporation possesses one or more functions, the intention of the legislation may be that only some of the Crown's immunities and privileges should attach to it. Whatever complexities may arise in such cases the course of statutory interpretation will but reflect the complex nature of the legislative intent to which effect is being sought to be given. In such cases indicia may at first sight appear to point in different directions, the apparent conflict only resolving itself by reference to the circumstances relevant to the case in hand and how they bear upon the particular function in question or the particular immunity or privilege to which claim is made.In the present case the Trust has but one function and only immunity from stamp duty in the exercise of that function is in question. As will have appeared from what I have earlier said, all relevant indicia appear to me to point quite clearly to the conclusion that the Trust is not, in the exercise of its function of investing moneys of the Fund, entitled to any immunity from stamp duty.
I would answer in the affirmative the question asked in the case stated, as did the majority in the Full Court, and would accordingly dismiss this appeal.
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