The Pape decision and comments on the Constitution by the High Court on the 7th July 2009
Pape v Commissioner of Taxation [2009] HCA 23 (7 July 2009)
FRENCH CJ. No Comment on S 15 A Acts Interpretation Act 1901 ( Cth)
249. GUMMOW, CRENNAN AND BELL JJ..
250. These decisions provide examples of that class of case where the phrase “shall nevertheless be a valid enactment to the extent to which it is not in excess of [the legislative] power [of the Commonwealth]” in s 15A of the Acts Interpretation Act 1901 (Cth) (”the Interpretation Act“) is applied to a provision which is addressed “to a larger subject matter, territory or class of persons than the power allows”. The words quoted are those of Dixon J in R v Poole; Ex parte Henry [No 2][301]. In that case the word “aerodrome” was construed as applying to aerodromes used for air navigation with other countries and among the States.
251. . To treat s 15A of the Interpretation Act as authorising such a reading of s 6 would be to risk construing s 15A as impermissibly entrusting legislative power to Ch III courts[302].
252. The result is that the plaintiff has the benefit of the concession by the defendants and the Bonus Act is not supported by s 51(ii) of the Constitution.
253. New South Wales sought to gainsay that concession by arguing that it was unnecessary because the Bonus Act in its terms was supported by s 51(ii). That submission, made orally after the concession by the defendants, may have exceeded the proper role of an intervener, but no objection was taken to it.
254.
388. HAYNE AND KIEFEL JJ.
Reading down
389. The principles governing whether s 15A of the Acts Interpretation Act is to be applied to read down a statutory provision that in some operations would be beyond legislative power are not controversial. They are conveniently described in the joint reasons of five Justices in the Industrial Relations Act Case: [1] Victoria v The Commonwealth (1996) 187 CLR 416 at 486‑487; [1996] HCA 56.
“Section 15A of the Interpretation Act may fall for application in two distinct situations. It may fall for application in relation to ‘particular clauses, provisos and qualifications, separately expressed, which are beyond legislative power’. It may also fall for application in relation to general words or expressions. It is well settled that s 15A cannot be applied to effect a partial validation of a provision which extends beyond power unless ‘the operation of the remaining parts of the law remains unchanged’. Nor can it be applied to a law expressed in general terms if it appears that ‘the law was intended to operate fully and completely according to its terms, or not at all’.
Where a law is expressed in general terms, it may be more difficult to determine whether Parliament intended that it should, nonetheless, have a partial operation. And there is an additional difficulty if it ‘can be reduced to validity by adopting any one or more of a number of several possible limitations’. It has been said that if, in a case of that kind, ‘no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid’.”
The critical question in this case is whether it appears that “the law was intended to operate fully and completely according to its terms, or not at all”. The metaphor of “intention” must not be permitted to mislead. It may greatly be doubted that legislation is ever passed with legislators intending less than full and complete operation of the statute according to its terms. And in the present matter it may be observed that an important motive for the Impugned Act being directed to taxpayers with low adjusted tax liabilities was the expectation that those taxpayers are more likely to spend the tax bonus than others. But if the question identified in the Industrial Relations Act Case is to be understood, as it must, as directing a comparison between the legal and practical operation of the Act according to its terms and its legal and practical operation as read down, the Impugned Act should be read down in the manner submitted by the Commonwealth. The operation of the Impugned Act as read down is not so different from its operation in accordance with its terms as to lead to the conclusion that it is not intended to operate in that restricted fashion. In particular, because the Impugned Act was evidently intended to provide an urgent stimulus to the economy by putting money in the hands of the intended recipients quickly, it is not to be assumed that the legislative “intention” was that there were to be no payments at all unless those who had paid the least amount of tax for the 2007-08 income year received the whole of the intended amount.
390. That is, the reading down that is required is of the second class identified by Dixon J in R v Poole; Ex parte Henry [No 2]. Provision is made which, in relation to a limited class of persons, might validly have been enacted, but “is expressed to apply … to a larger … class of persons than the power allows”. It is intended that “the particular command or requirement expressed in the provision should apply to or be fulfilled by each and every person within the class independently of the application of the provision to the others”. It is not to be supposed that none were to receive unless all did.
396. HEYDON J. I dissent. (No Comment on S 15A Acts Interpretation Act 1901 ( Cth))
“[I]t is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances.”