In 1903, the House of Representatives threw aside an Appropriation Bill with regard to which the Senate had pressed certain requests ; but introduced and passed a Bill containing the requested alterations. And on another occasion the House of Representatives complied without demur to a reiterated request: Excise Tariff (Spirits) Bill, Votes and Proc. 1906, pp. 169, 173.

§ 103. "THE OMISSION OR AMENDMENT OF ANY ITEMS OR PROVISIONS."

The President has ruled that the Senate cannot request the insertion of a new item in a tariff: Sen. Journ. 1907-1908, p. 508; Parl. Deb., vol. 45, pp. 10020, 10024. And, in the case of a Bill to amend an existing Tariff Act, it makes no difference that the proposed new item purports to be an amendment of an item in the existing Tariff Act: Sen. Journ. 1910, p. 219.

But this limitation does not debar the Senate from requesting an increased rate of duty Parl. Deb., vol. 11, : pp. 14885-14918; vol. 12, p. 15676; vol. 45, pp. 10484-10487.

Appropriation Bills.

54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation.

Tax Bills.

55. Laws imposing10 taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.

105

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.

§ 104. "LAWS IMPOSING TAXATION."

Interpretation Distinguished from Taxation.

In the Court of Petty Sessions, Melbourne, Leah Abrahams was, in April 1902, prosecuted under the Commonwealth Customs Act 1901, sections 234 and 236, on a charge of being concerned in making a false declaration on 28th November 1901. She was convicted and fined £50 with £21 costs. The case came before the Supreme Court of Victoria on an order nisi to review the decision which was attacked on several grounds, inter alia, viz. :-that the Customs Act under which the conviction had been secured was, so far as it was applicable, invalid because it contained provisions contrary to the Constitution Act, section 55.

It was argued for the defendant that sections 138, 139, 140, 141 and 148 of the Customs Act imposed taxation, whilst other sections, including section 234 created offences with penalties annexed thereto. Defendant was prosecuted under section 234, one of the penal sections of the Act.

The Customs Act 1901 came into operation on 3rd October 1901. The Customs Tariff Act (1902) became law on 16th September 1902 and section 4 of that Act declared that it should be deemed to have come into operation on 8th October 1901. Section 2 of the Tariff Act provided that the Customs Act should be incorporated and read as one with it.

Upon the hearing of the order nisi before the Chief Justice (Sir JOHN MADDEN) arguments were submitted in support of the convictions to the effect that the sections of the Customs Act alleged to impose taxation were merely interpretations or provisions intended. to give greater amplitude to the meaning of the provisions of the Tariff Act. Chief Justice MADDEN, however, refused to accept this view. He held that all the above quoted sections of the Customs Act were statutory impositions of taxation. "The consequence is" said the Chief Justice, "that all portions of the Customs Act except such as do impose taxation, and whether they are regarded as a separate enactment or as incorporated with the Tariff Act by its section 2 are of no effect and are void. Therefore section 234, under which this prosecution was instituted, is void. It is not a section which deals with the imposition of a tax only. It is a section intended to deter people from seeking to evade or cheat the customs

duties, or to prevent or embarrass their due collection. So also is section 236 void. Section 255 is also void and this case was conducted on the strength of it. So is section 183. The result is that the foundation of the information and of its prosecution fails, and the conviction is bad": Stephens v. Abraham (No. 1), 24 A.L.T., 185; 29 V.L.R., 201; 9 A.L.R., 79. The order nisi was made absolute and the conviction was quashed with costs.

Another test prosecution was instituted in the Court of Petty Sessions, Melbourne, against the same defendant for other offences against the sections 234 and 236 of the Commonwealth Customs Act. She was convicted and fined. An order nisi to review the decision was granted by Mr. Justice A'BECKETT. On return of the

order it was referred to the Full Court which then had the opportunity of considering the decision of Chief Justice MADDEN in quashing the first conviction. In the result, the Full Court consisting of WILLIAMS, A'BECKETT and HOOD, JJ., held that none of the sections in part VIII. of the Customs Act 1901 impose taxation and that therefore the Act was not a law "imposing taxation within the meaning of section 55 of the Constitution: Stephens v. Abraham (No. 2), 29 V.L.R., 229; 24 A.L.T., 216; 9 A.L.R., 89.

Mr. Justice WILLIAMS said :—“ Looking at the Customs Act at the time it was passed, which as the Chief Justice says is the proper way to look at it, it was clearly not an Act imposing taxation. When the Tariff Act came into force subsequently, Part VIII. of the Customs Act, meanwhile suspended, came into operation. I think that, read with the Federal Tariff Act the provisions contained in Part VIII. of the Customs Act are merely declaratory, or for the purpose of interpretation or definition, or prescribing rules of denomination or machinery provisions for carrying out and enforcing the Tariff Act. These provisions in Part VIII. to which I refer, are evidently framed chiefly for the purpose of preventing the importation of goods in disguise or by devices so as to evade payment of duty on goods which they represent, or for which they are substitutes, or of which they form part.

Not Applicable to Territories.

The limitations imposed by section 55 of the Constitution upon the making of laws imposing taxation apply only to such laws as are made for the government of the States under the power conferred by section 51 (II.), and do not apply to laws made for the government of any territory acquired by the Commonwealth conferred by section 122, the two powers being independent of one

another. It has therefore been held by the High Court that the Northern Territory Acceptance Act 1910 and the Northern Territory (Administration) Act 1910, so far as by section 7 of the former Act and section 5 of the latter Act they purport to give effect, in the Northern Territory, as laws of the Commonwealth, to laws of South Australia which impose taxation, are valid as not being within the prohibition of section 55: Buchannan and Another v. The Commonwealth and Another, (1913) 16 C.L.R., 315.

Industrial Regulations not Taxation.

The Excise Tariff Act 1906 (No. 16) is not an Act imposing duties of excise but is an Act to regulate the conditions of manufacture of agricultural implements, and is therefore not an exercise of the power of taxation conferred by the Constitution. Even if it were otherwise within the competence of the Commonwealth Parliament to deal with the conditions of labour, the Excise Tariff Act 1906 (No. 16), which, if valid, would have the effect of regulating the conditions of manufacture, would be invalid because it deals with matters other than duties of excise, contrary to section 55 of the Constitution: The King v. Barger, (1906) 6 C.L.R., 77.

Land Tax Legislation.

In the case of Osborne v. The Commonwealth, (1911) 12 C.L.R., 321, the question was raised as to the validity of the Commonwealth Land Tax Act (1910) and the Land Tax Assessment Act (1910) which are to be read together. One objection taken, founded on section 55 of the Constitution, was that the Acts in question dealt with more than one subject of taxation and were therefore wholly void.

The Court held that the incorporation into the Land Tax Act 1910 by section 2 of that Act of the Land Tax Assessment Act 1910, which was not assented to until the following day, is effectual and that the Land Tax Act 1910 with that incorporation is in substance and in form an Act imposing taxation and not an Act to prevent the holding of large quantities of land by single persons. The Court also held that the Land Tax Assessment Act 1910 is not an Act imposing taxation within the meaning of section 55 of the Constitution, and that the Land Tax Act 1910 does not deal with any other subject of taxation than land, and does not in that respect infringe section 55 of the Constitution.

Mr. Justice O'CONNOR'S judgment clearly summarised the constitutional view of section 55:-" The taxation legislation, the subject of this special case," he said, "is contained in two Statutes, which, for the purpose of administration, must be read together. 'The Act first assented to, the Tax Act, is restricted to declaring the imposition of the tax and fixing the rate. The other Act, assented to on the day after, is the Assessment Act. Without its provisions no tax could be collected under the Tax Act, but of itself it imposes no tax. It is plain that the imposition of the tax is effected by the first Act, and that the other provisions of the second Act are directed merely to assessing the amount to be paid, and making it payable according to the assessment."

The object of section 55 of the Constitution is to secure that each enactment imposing taxation shall be framed in a certain form. The frame of the enactment is important only for reasons of parliamentary procedure. The section is in the middle of a group of sections dealing with the legislative powers of the Senate and House of Representatives, and with the Governor's assent to proposed laws, their reservation and disallowance. Every section of the group relating to parliamentary procedure is directed to preserving the privileges of the House of Representatives with respect to appropriating moneys and imposing taxation, and to safeguarding the Senate from abuse of those privileges by the House of Representatives. To that end it provides that proposed laws which the Senate are forbidden to amend shall be framed in the manner prescribed."

In enacting section 55," continued Mr. Justice O'CONNOR, the framers of the Constitution have given the Court jurisdiction to examine the frame of a law. Section 55 may be applied to each piece of legislation as it becomes law, just as either House would apply the provisions of sections 53 and 54 of the Constitution to proposed laws as they came before them. Immediately a proposed law becomes a law, it is subject to examination in the light of section 55. If it is framed in accordance with that section, it is valid. Judged separately on these principles neither the Tax Act nor the Assessment Act is open to the objections taken. The former, which is a law imposing taxation, clearly deals with one subject of taxation only that is land-the latter, though dealing with taxation, does not, as I have pointed out, impose taxation, and is therefore not within the section. Considering both Acts together, to ascertain