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It should be noted that
the name of this Bill as introduced on 22 October 2009 is actually the Carbon Pollution Reduction Scheme (Charges – Excise)
Bill 2009. This Bill is identical to
the earlier Bill of the same name which was first introduced in the House of
Representatives on 14 May 2009, passed unamended on 4 June 2009, but then negatived
by the Senate on 13 August 2009.
The addition of the reference ‘[No. 2]’ has been made by
the Department of the House of Representatives Table Office to indicate that
the Bill is introduced for a second time.
Bills Digest no. 54 2009–10
Carbon Pollution Reduction Scheme (Charges – Excise) Bill 2009 [No. 2]
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Main provisions
Contact officer & copyright details
Passage history
Date introduced: 22 October 2009
House: House of Representatives
Portfolio: Climate Change and Water
Commencement: The formal provisions (sections 1 and 2) will commence on
the day of Royal Assent. The main operative provisions (sections 3 to 8) will
commence at the same time as the operative provisions of the Carbon
Pollution Reduction Scheme Act 2009[1] commence.[2]
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
To safeguard the constitutional
validity of the proposed Carbon Pollution Reduction Scheme Act 2009 in
respect of the levying of charges for the issue of Australian emissions units.
Reintroduction of the Carbon
Pollution Reduction Scheme Bills and this Digest
The Carbon Pollution Reduction Scheme (Charges – Excise)
Bill 2009 (the original Bill) was first introduced into Parliament on 14 May
2009 as part of the 11-Bill Carbon Pollution Reduction Scheme (CPRS) package of
legislation. Along with the other CPRS Bills, the original Bill was passed by
the House of Representatives on 4 June, but negatived in the Senate on 13
August 2009.
The content of the current Bill, the Carbon Pollution Reduction
Scheme (Charges – Excise) Bill 2009 [No. 2], is identical to the original Bill.
As such, this Digest is unchanged from the Digest produced in June 2009 for the original Bill. For commentary on recent
developments regarding the proposed CPRS, including the reintroduction of the
CPRS Bills, see relevant sections in the Digest on the Carbon Pollution
Reduction Scheme Bill [No. 2] 2009.
At
the time of writing, the current Bill has not been referred to any committee. The
original Bill, along with the others in the CPRS package, was referred to the Senate Standing Committee on Economics for inquiry
and report by 15 June 2009. Details of the inquiry are at http://www.aph.gov.au/senate/committee/economics_ctte/cprs_2_09/index.htm
Section 55 of the Commonwealth Constitution states:
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, except laws imposing duties of
customs or of excise, shall deal with one subject of taxation only; but laws
imposing duties of customs shall deal with duties of customs only, and laws
imposing duties of excise shall deal with duties of excise only.
In Australia, the classic formulation of what is a tax was
set down some 70 years ago by Latham CJ of the High Court of Australia:
… [a tax] … is a compulsory acquisition of money by a public
authority for public purposes, enforceable by law, and is not a fee for
services rendered.[3]
This formulation is not necessarily a legally exhaustive
test of whether in all circumstances a charge is a tax, but as a broad guide it
remains valid.
Part 4 of Division 2 of the Carbon Pollution Reduction
Scheme Bill 2009 Bill [No. 2] (the primary Bill) provides that a charge may be
payable to the Commonwealth for the issue of an Australian emissions unit. The
Government has stated that it does not consider such a charge is a tax within
the meaning of the Constitution, and thus the primary Bill does not impose a
tax.[4] However, to avoid any risk of a contravention of the first paragraph of section
55 above, it has introduced three separate Bills, along with inserting clause
91 in the primary Bill.
Clause 91 in the primary Bill provides that if the charge
for the issue of an Australian emissions unit is in fact a tax, then the charge
is not imposed by the primary Bill, but whichever of the following three Acts
are relevant in the circumstances:
- the Carbon Pollution Reduction Scheme (Charges—Customs) Act
2009
- the Carbon Pollution Reduction Scheme (Charges—Excise) Act
2009
- the Carbon Pollution Reduction Scheme (Charges—General) Act
2009
This approach avoids any
possibility of the non-taxation elements of the primary Bill being ‘of no
effect’ under section 55 of the Constitution. It then safeguards the validity
of the primary Bill, and hence the legislative underpinning of the CPRS.
Clause 4 provides that the State, Territory and
Norfolk Island governments are bound by the Bill, but the Commonwealth is not.
It is unclear why the Bill has been drafted to exempt the Commonwealth, and
neither the second reading speech nor the Explanatory Memorandum sheds any
light on this.
Clauses 5-6A deal with the geographical coverage of
the Bill. It applies in all Australian external territories, the exclusive
economic zone and continental shelf, and the Timor Sea Joint Petroleum
Development Area.
Clause 7 states that if a charge is payable to the
Commonwealth for the issue of an Australian emissions unit, whether as result
of an auction or by a fixed charge, and that charge is taxation within the
meaning of section 55 of the Constitution, then the charge is imposed by clause
7, so far as the charge is an excise duty (within the meaning of section 55).
Clause 8 provides that the Bill cannot impose a tax
upon property of any kind belonging to a State. This is to ensure that the Bill
does not contravene section 114 of the Constitution, which prevents the
Commonwealth and the States from taxing each other’s property.
© Copyright Commonwealth of Australia
Members, Senators and
Parliamentary staff can obtain further information from the Parliamentary
Library on (02) 6277 2764.
Angus Martyn
29 October 2009
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
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