“Charge or Burden on the People”: The Origins and Meaning of the Third Paragraph of Section 53 of the Commonwealth Constitution
| Author | Paul Schoff |
| Date | 01 March 1996 |
| DOI | 10.22145/flr.24.1.2 |
| Published date | 01 March 1996 |
| Subject Matter | Article |
"CHARGE
OR
BURDEN
ON
THE
PEOPLE":
THE ORIGINS
AND
MEANING
OF THE THIRD PARAGRAPH OF SECTION
53
OF THE COMMONWEALTH CONSTITUTION
Paul
Schoff*
"The Senate
may
not
amend
any
proposed
law so as to increase the
proposed
charge
or
burden
on
the people."t
"I
confess it came as asurprise to
me
to find that this House could
make
a
law
to
shoot
dogs,
or
poison them,
or
to
do
anything
with
them
except increase the tax
on
them
half-a-
crown.
,,2
INTRODUCTION
This article examines the third
paragraph
of s53 from the
high
ground
of history.
Section 53
must
not
be
seen as
an
isolated
and
unique
problem. Rather,
it
is merely
another
manifestation of the intractable
problem
of defining the
power
to tax. The Bill
of Rights, arising
out
of the Revolution of 1688, defined the constitutional prerogatives
of
the
King,
when
it
provided
"[t]hat levying
money
for or to the
use
of the
Crown,
by
pretence of prerogative,
without
grant
of Parliament for longer time
or
in
other
manner
*
1
2
BAGuris)
LLB
(Hons) (Adel), Associate to the
Hon
Justice W M C
Gummow,
High
Court
of
Australia.
The
third
paragraph
of
section
53
of
the Commonwealth Constitution. The full text
of
s53
is as follows:
Proposed laws appropriating revenue
or
moneys,
or
imposing taxation, shall
not
originate
in
the Senate. But aproposed law shall
not
be taken to appropriate revenue
or
moneys,
or
to impose taxation,
by
reason only of its containing provisions for the imposition
or
appropriation of Jines
or
other pecuniary penalties,
or
for the
demand
or
payment
or
appropriation of fees for licences,
or
fees for services
under
the
proposed
law.
The Senate
may
not
amend
proposed
laws imposing taxation,
or
proposed
laws
appropriating
revenue
or
moneys for the ordinary
annual
services of
the
Government.
The Senate
may
not
amend
any
proposed
law
so as to increase the
proposed
charge
or
burden
on
the people.
The Senate
may
at
any
stage
return
to the House of Representatives
any
proposed
law
which
the Senate
may
not
amend, requesting,
by
message, the omission
or
amendment
of
any
items
or
provisions therein.
And
the House of Representatives may, if
it
thinks fit,
make
any
of
such
omissions
or
amendments,
with
or
without
modifications.
Except as
provided
in
this section, the Senate shall
have
equal
power
with
the
House
of
Representatives
in
respect of all
proposed
laws.
Hon
0Melville, Legislative Council, Explosives Bill 1885
(Vic)
Vic PO 1885 Vol xlix
at
1492.
44
Federal
Law
Review
Volume
24
than
the
same
is
or
shall
be
granted, is illegal".3
Art
1 s 7 of the
United
States
Constitution requires
that
"[alII bills for raising revenue shall originate
in
the
house
of
representatives;
but
the Senate
may
propose
or
concur
with
amendments, as
on
other
bills". Story elegantly
under-stated
the position
when
he
remarked, "What bills are
properly
'bills for raising revenue',
in
the sense of the constitution,
has
been
matter
of
some
discussion".4
While it
must
be
admitted
that
tax
in
the Australian colonies
led
to
nothing
so
dramatic
as aGlorious Revolution, aBill of Rights,
or
a
War
of Independence,
problems
concerning the scope of the
power
to tax arrived
in
Australia along
with
the
other
baggage
of
English law. For
examfle,
in
1848 the
Supreme
Court
of Van
Diemen's
Land
held
the Dog
Act
1848, which
imposed
atax
on
dogs, to
be
unconstitutional. The decision cast considerable
doubt
on
the validity of
other
taxation
arrangements
and
led
to the removal of
Montagu
Jfrom the Court.6With
the
advent
of
responsible
government
in
the colonies,
and
the creation of bicameral parliaments,
came
the
related issue of
how
to delineate
the
powers
of each
House
in
relation
to
the
origination
and
amendment
of Bills imposing taxation.
The failure of the drafters of the
Commonwealth
Constitution to
deal
adequately
with
the
problem
is evidenced
by
the fact that, even after federation, conflict
has
flourished.
In
1903, the
stormy
passage of the Sugar Bonus Bill
marked
the
beginning
of the struggle
between
the
House
of Representatives
and
the Senate. These bodies are
still seeking a
working
solution to the
conundrum
of the
third
paragraph.
In
November
1995 the
House
of Representatives Standing Committee
on
Legal
and
Constitutional
Affairs (the Committee) tabled aReport
on
the third
paragraph
of s53.7The
Committee
sought
to achieve asynthesis
between
different approaches to
interpretation.
One
approach
tC\ken
by
the Committee
was
to examine the history of the
words
through
the process of constitutional drafting
in
the 1890s. The Committee
considered
that
"history
and
precedent
are good guides
even
though
they
may
be
rejected as absolute masters".8 It is rare for legal history to
be
so topical
and
indeed
its
utility
in
the
attainment
of a
mutually
satisfactory accommodation
between
the
Houses
is rightly questioned. However, the
use
of history
by
the Committee, albeit as
servant
rather
than
master, is criticised
by
this article.
Each
House
faces
two
enemies. The first
enemy
is the
paragraph
itself
which
doggedly
resists
sens~ble
meaning. The second
enemy
faced
by
each
House
is the
other
House. The
words
are
part
of the constitutional regulation of their relationship
and
respective powers,
and
so the location of
meaning
inevitably involves
an
intercameral
power
struggle. Accordingly,
it
is
not
surprising
that
the
High
Court's reasons
in
Western Australia vThe Commonwealth cast only a
weak
light
on
the problem. After
3
4
5
6
7
8
1Will &Mary, session
2,
e
2.
The Aet
was
given this short title
by
the
Short
Titles
Act
1896
(UK).
JStory,
Commentaries
on
the
Constitution of
the
United
States
(1st
ed
1833) Vol 2
at
342-343.
10 Viet,
No
5.
ACastles, An Australian
Legal
History (1982)
at
278-280.
House
of
Representatives Standing Committee
on
Legal
and
Constitutional Affairs,
The
Third
Paragraph
of
Section
53
of
the
Constitution
(1995).
Ibid
at
para
3.1.8.
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