ANTS (GST) Bill 1998 - Any Section 55 Constitutional Issues?

Current Issues Brief No 14 1998-99

Bernard Pulle
Economics, Commerce and Industrial Relations Group
8 June 1999

Contents

Major Issues Summary

Is the ANTS (GST) Bill 1998 a 'law imposing taxation'?

Does the ANTS (GST) Bill 1998 Deal with one Subject of Taxation?

Conclusion

Endnotes

Major Issues Summary

The object of this paper is to examine whether any of the provisions of the A New Tax System (Goods and Services Tax) Bill 1998 (the ANTS (GST) Bill 1998) breach the requirements of section 55 of the Constitution which reads as follows:

As will be seen from the above, the first paragraph of section 55 provides that laws imposing taxation can only deal with the imposition of tax and any other matter covered by that legislation will be of no effect. The purpose of this provision is to prevent the tacking of unrelated non-taxation matters onto taxation Bills which the Senate is unable to amend under section 53 of the Constitution. The first issue considered in this paper is whether the A New Tax System (Goods and Services Tax) Bill 1998 is a law imposing taxation and whether it includes any provisions which may be said to be laws imposing taxation under section 55 of the Constitution.

The second paragraph of section 55 provides that laws imposing taxation shall deal with one subject of taxation only. The second issue considered in this paper is whether the ANTS (GST) Bill 1998 deals with only one subject of taxation. The second issue will not arise if it is concluded that the ANTS (GST) Bill 1998 does not have provisions which are laws imposing taxation for the purposes of section 55 of the Constitution.

Is the ANTS (GST) Bill 1998 a 'law imposing taxation'?

Role of Imposition Acts in the structure of the ANTS Bills

The Bills(1) to implement A New Tax System (the ANTS Bills) are structured on the basis that the provisions to impose the goods and services tax (GST) are to be found only in the following Bills:

• A New Tax System (Goods and Services Tax Imposition-General) Bill 1998
• A New Tax System (Goods and Services Tax Imposition-Customs) Bill 1998, and
• A New Tax System (Goods and Services Tax Imposition-Excise) Bill 1998.

Clause 2-1 of the A New Tax System (Goods and Services Tax) Bill 1998 (ANTS (GST) Bill 1998) states this explicitly:

The Note to Clause 2-1 emphasises the fact that the GST is imposed only by the above mentioned Acts. The above Acts will be collectively referred to in this paper as the GST Imposition Acts. It is also relevant to note that GST has been defined in clause 195-1 of the ANTS (GST) Bill 1998 to mean that it is 'tax that is payable under the GST law and imposed as goods and services tax by any of' the GST Imposition Acts.

GST law has been defined in clause 195-1 of the ANTS (GST) Bill 1998 as follows:

To avoid a contravention of section 55 the normal procedure is to separate the law imposing taxation from the law which sets up the machinery for assessment and collection. The rating Act too can be separate, e.g. the legislative framework relating to income tax is as follows:

• Income Tax Act 1986 (imposes the liability)
• Income Tax Assessment Act 1936 (sets up the machinery for assessment and collection), and
• Income Tax Rates Act 1986 (fixes the rate).

The separation of the GST Imposition Acts from the ANTS (GST)Bill 1998 is intended to comply with the provisions of section 55 of the Constitution.

Why has the GST to be Imposed by Three GST Imposition Acts?

It was mentioned above that the GST is the tax that is payable under GST law and imposed as goods and services tax by any of the three GST Imposition Acts. The GST Imposition Acts envisage that in certain circumstances the tax on goods and services may be a customs duty or an excise duty or a mere tax under section 55 of the Constitution.

Thus clause 3 of the A New Tax System (Goods and Services Tax Imposition-General) Bill 1998 (the GST General Imposition Bill) provides as follows:

2. The tax that is payable under the GST law (within the meaning of the A New Tax System (Goods and Services Tax) Act 1998) is imposed by this section under the name of goods and services tax (GST).

3. This section imposes GST only so far as that tax is neither a duty of customs nor a duty of excise within the meaning of section 55 of the Constitution.

Similarly clause 3 of the A New Tax System (Goods and Services Tax Imposition-Excise) Bill 1998 (the GST Excise Duty Imposition Bill) provides as follows:

2. The tax that is payable under the GST law (within the meaning of the A New Tax System (Goods and Services Tax) Act 1998) is imposed by this section under the name of goods and services tax (GST).

3. This section imposes GST only so far as that tax is a duty of excise within the meaning of section 55 of the Constitution.

Also, clause 3 of the A New Tax System (Goods and Services Tax Imposition-Customs) Bill 1998 (the GST Customs Duty Imposition Bill) provides as follows:

2. The tax that is payable under the GST law (within the meaning of the A New Tax System (Goods and Services Tax) Act 1998) is imposed by this section under the name of goods and services tax (GST).

3. This section imposes GST only so far as that tax is a duty of customs within the meaning of section 55 of the Constitution.

The Explanatory Memorandum to each Imposition Bill clarifies the constitutional requirements for separate Imposition Acts as follows: (2)

A tax includes a duty of customs and a duty of excise.

Thus given that the tax on goods and services may in certain circumstances be a duty of excise, or a duty of customs or a mere tax it was necessary to have three GST Imposition Acts to comply with the requirements of section 55 of the Constitution. (3)

The Explanatory Memorandum to the A New Tax System (Goods and Services Tax Imposition 3/4 General) Bill 1998 confirms this outcome:

• that is a duty of customs (A New Tax System (Goods and Services Tax Imposition 3/4 Customs) Act 1998)
• that is a duty of excise (A New Tax System (Goods and Services Tax Imposition 3/4 Excise) Act 1998)
• that is neither a duty of customs nor a duty of excise (A New Tax System (Goods and Services Tax Imposition 3/4 General) Bill 1998).

How is Sales Tax Imposed Under the Current Law and How Does it Compare with the Proposed GST Imposition Laws?

The following Acts are the core of the current sales tax law which commenced on 1 January 1993:

• the Sales Tax Assessment Act 1992, which defines the situations in which sales tax is payable and also has rules about ancillary matters such as registration, quoting, time for payment
• the Sales Tax (Exemptions and Classifications) Act 1992, which contains a list of goods that are exempt, either generally or in particular situations; and also sets out the rates of sales tax that apply to different classes of goods, and
• the following Acts, which formally impose sales tax are separate Acts to comply with the requirements of section 55 of the Constitution:

Thus section 3 of the Sales Tax Imposition (General) Act 1992 states as follows:

It will thus be seen that the GST Imposition Acts follow closely the structure of imposing sales tax under the sales tax regime. Further, the ANTS (GST) Act 1998 takes the place of the Sales Tax Assessment Act 1992 under the sales tax regime.

It will also be noted that the Sales Tax (Exemptions and Classifications) Act 1992 contains a list of goods that are exempt, either generally or in particular situations; and also sets out the rates of sales tax that apply to different classes of goods. Thus the Sales Tax (Exemptions and Classifications) Act 1992 is in fact a rating Act.

In the case of the Bills implementing ANTS there is no separate rating Act (or Bill at this stage) in view of the uniform rate of 10 per cent applicable to all taxable supplies and taxable importations. Proposed clause 4 of each GST Imposition Bill provides:

As will be seen, on the basis of the dicta in Re Dymond discussed below, there is no contravention of the provisions of section 55 by including the rate of 10 per cent in the GST Imposition Acts.

Are Provisions in the ANTS (GST) Bill 1998 which Refer to the Rate of GST Laws Imposing Taxation?

The ANTS (GST) Bill 1998 sets out the machinery for the assessment and collection of the GST. As mentioned earlier it begins (in Chapter 2) with the basic rules about the GST, and then sets out in Chapter 3 the exemptions from the GST and in Chapter 4 the special rules that can apply in particular cases. It concludes with definitions and other interpretative material.

The GST Imposition Acts, as indicated above, provide that the rate of goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1998 is 10 per cent. There are two provisions in the ANTS (GST) Bill 1998 which state that GST is payable at 10 per cent on taxable supplies and taxable importations and it is necessary to examine whether they are laws imposing taxation under section 55 of the Constitution.

Thus clause 9-70 provides:

Clause 9-75 provides a formula to determine the value of a taxable supply. The Explanatory Memorandum states that 'With a GST rate of 10% the value of a taxable supply is 10/11 of the price paid for the supply'.(4)

Proposed subclause 13-20(1) provides

The Explanatory Memorandum states that the amount of GST on a taxable importation is the value of the taxable importation multiplied by the rate of GST.(5) Proposed subclause 13-20(2) provides that the value of taxable importations is the cost, insurance and freight (CIF) value, i.e. the customs value (free on board (FOB)) plus the costs of freight, insurance and customs duty. The question arises whether the above provisions and the provisions of the following Acts (presently Bills) which set the rate of GST at 10 per cent are part of the laws imposing the GST.

2. A New Tax System (Goods and Services Tax Imposition-General) Act 1998

3. A New Tax System (Goods and Services Tax Imposition-Customs) Act 1998

4. A New Tax System (Goods and Services Tax Imposition-Excise) Act 1998?

It will be noted that clause 9-70 and subclause 13-20(1) both deal with 'the amount of the GST' and use the rate of GST of 10 per cent set by the GST Imposition Acts in calculating the total amount of GST payable. They deal with how the GST payable is to be worked out on the basis of the rate of GST set by the GST Imposition Acts and cannot be said to determine the rate of GST.

Comparison with Provisions of the Fringe Benefits Tax Assessment Act 1986

A similar provision exists in section 136AA of the Fringe Benefits Tax Assessment Act 1986 where the fringe benefits taxable amount is determined by grossing up the aggregate fringe benefits by reference to the rate of FBT.

The FBT rate for the year of tax is set by section 6 of the Fringe Benefits Tax Act 1986 which provides as follows:

This is another instance where in the light of dicta in High Court decisions legislation has been framed to separate an Assessment Act from an Imposition or Taxing Act to comply with the requirements of section 55. Following the decision in Osborne v Commonwealth which was confirmed in FCT v Munro and Re Dymond it is accepted that laws relating to the assessment and collection of tax are not 'laws imposing tax' in the sense that this phrase is used in section 55.(6) In the words of Fullagar J in Re Dymond, at page 21:

As Latham CJ noted in Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation the practice adopted by Parliament of enacting both a Tax Act and an Assessment Act is in accordance with the pronouncement of the High Court to meet the requirements of sections 53 and 55 of the Constitution.(7)

These words of Latham CJ were cited with approval by Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ in the Second Fringe Benefits Tax Case.(8) In this case these justices also noted that Isaacs J had in the Commonwealth v Melbourne Harbour Trust Commissioners taken the view that the provisions of an Assessment Act dealing with the collection and recovery of tax, assessments, objections, appeals, offences and penalties were not provisions dealing with the imposition of taxation.(9) These justices also recalled that although a contrary view had been taken by Higgins and Starke JJ in Munro and by Latham CJ in Moore v The Commonwealth, a majority of the High Court had vindicated the opinion of Isaacs J in Re Dymond. (10)It must be noted that Re Dymond was decided by the High Court on the basis that the provisions of the section 46 of the Sales Tax Assessment Act (No 1) 1930-1953 which imposed minimum additional tax in the sum of 1 for failure to lodge returns was in fact not a tax but a penalty. Hence section 55 had no application and the dicta of Fullagar J and those of Dixon CJ, Kitto, Taylor and Windeyer JJ on the requirements of the first paragraph of section 55 of the Constitution in Re Dymond must be considered obiter. However, the adoption of the dicta of Fullagar J in the Second Fringe Benefits Tax Case must be taken to settle the question that an Assessment Act is not a law imposing taxation in the meaning of that expression in section 55 of the Constitution.

Thus the provisions of clause 9-70 and subclause 13-20(1) of the ANTS (GST) Bill 1998 are provisions dealing with questions of liability and are not laws imposing taxation in the dicta of Fullagar J. The writer therefore takes the view that the ANTS (GST) Bill 1998 is not a law imposing taxation for the purposes of section 55 of the Constitution. It is also not a law imposing duties of customs or excise for the purposes of section 55 of the Constitution.

It will be noted that Fullagar J in Re Dymond does not refer to the rates of tax in the list of items which he classifies as matters not coming within the expression 'imposition of taxation'. Whilst the list of excluded items may not be taken as comprehensive, an item so significant as the rate of tax may not have been lightly passed over in stating the elements that fell outside the expression 'imposition of taxation'. It may therefore mean that an Act imposing tax may include the rates of tax without contravening the provisions of section 55 of the Constitution. Thus the GST Imposition Acts which set the rate of GST at 10 per cent while imposing the GST will not contravene the provisions in the first paragraph of section 55 of the Constitution. This is similar to the Fringe Benefits Tax Act 1986 which by section 5 imposes tax in respect of the fringe benefits taxable amount of an employer and in section 6 sets the rate of tax at 48.5 per cent.

Does the ANTS (GST) Bill 1998 Deal with one Subject of Taxation?

The second paragraph of section 55 provides that laws imposing taxation shall deal with one subject of taxation only and it is proposed to consider whether the provisions of the ANTS (GST) Bill deal with only one subject of taxation. As will be seen from the terms of the second paragraph of section 55 set out below it will apply only to laws imposing taxation.

In view of the conclusion reached in the previous paragraph of this paper that there do not appear to be any provisions in the ANTS (GST) Bill 1998 which may be said to be laws imposing taxation for the purposes of the first paragraph of section 55 of the Constitution, the only reason for pursuing this inquiry in this paper is to consider this question in the unlikely event that the High Court holds that there are provisions in the ANTS (GST) Bill 1998 which are laws imposing taxation.

The Executive Summary of the Explanatory Memorandum to the ANTS (GST) Bill 1998 succinctly states that the GST is a tax on private consumption in Australia. While this is the objective, the methods used to achieve this may determine whether the ANTS (GST) Bill 1998 deals with only one subject of taxation for the purposes of section 55 of the Constitution.

The Executive Summary of the Explanatory Memorandum continues as follows:

• imposing tax on supplies made by entities registered for GST; but
• allowing those entities to offset the GST they are liable to pay on supplies they make against input tax credits for the GST that was included in the price they paid for their business inputs.(11)

Clause 7-1 of the ANTS (GST) Bill 1998 states that GST is payable on taxable supplies and taxable importations. The question to be considered is whether the tax on taxable supplies and taxable importations to achieve the objective of taxing the final private consumption of goods and services is one subject of taxation for the purposes of the second paragraph of section 55 of the Constitution.

Isaacs J in Harding v Federal Commissioner of Taxation provided the test for ascertaining whether the subject of taxation imposed by an Act was single.(12)

This test was adopted by Dixon J in Resch v Federal Commissioner of Taxation.(13)

It was also adopted by the High Court in the Second Fringe Benefits Tax Case.(14)

Thus the High Court will not give to the words 'one subject of taxation' in the second paragraph of section 55 a narrow construction. The ANTS (GST) Bill 1998 deals with a tax on the final private consumption of goods and services and the High Court is likely to examine its provisions from the benchmark set out in the Executive Summary of the Explanatory Memorandum to the ANTS (GST) Bill 1998 that it deals with the taxation of final private consumption in Australia.(15) The test will be whether the unit of taxation in the ANTS (GST) Bill 1998 covers the taxation of the consumption of goods and services in the generally accepted meaning of a consumption tax. This would be the tax that causes the cost of goods and services to the final consumer to generally rise in consequence of its imposition at various taxing points in the chain of supply of goods and services. It is unlikely to be a legal or economic analysis of the tax or taxes dealt with by the ANTS (GST) Bill 1998. The analysis therefore required prior to concluding whether the provisions of the second paragraph of section 55 have been breached is a broad understanding of what the general subject of the taxation measures dealt with in the ANTS (GST) Bill 1998 is about.

There is support for this approach in the dicta of Dixon J in Resch:

In this view of Dixon J of the meaning of subject of taxation, the ANTS (GST) Bill 1998 may be said to deal with the taxation of final private consumption of goods and services in Australia and may be said to deal with one subject of taxation-the GST in the general understanding of that term. Dixon J adds that it is for the legislature to make a choice of the all inclusive nature of the subject of taxation to be dealt with in any enactment or enactments.

The choice referred to in the above paragraph can only have a meaning in the context of the Westminster system of government where a majority in each of the two Houses of Parliament decides the choice made by Parliament. It is unlikely to include a requirement that there must be unanimous approval in each House of Parliament, as the Westminster system of parliamentary democracy does not work on that basis.

The role of Parliament in deciding whether there was non-compliance with the provisions of the second paragraph of section 55 of the Constitution was reiterated by the High Court in the Second Fringe Benefits Tax Case as follows:(18)

Thus if the question of the subject of taxation in a particular Bill has been addressed by the Parliament and both Houses of Parliament have passed the Bill on the understanding that there has been no breach of the requirement in the second paragraph of section 55 in regard to it dealing with one subject of taxation, the High Court is unlikely to interfere with that decision of Parliament unless there is a clear provision in that Bill to the contrary effect. In the case of the ANTS (GST) Bill 1998 this question has been raised in the Senate and if it is finally passed on the basis that it deals with only one subject of taxation, the High Court is unlikely to declare it invalid unless there are provisions clearly indicating the contrary effect.(20) It must be noted that the nature of the subject of taxation dealt with in any law could be gathered not only from the provisions in one particular Act but from a consideration of all connected Acts. In the case of the ANTS (GST) Bill 1998 the nature of the subject of taxation dealt with may be gathered from an overview of the package of ANTS Bills.(21)

However, after the broad test of the subject of taxation dealt with in any particular Act is ascertained, the Court will still examine whether any particular provision has introduced a new or second subject of taxation which may offend the second paragraph of section 55 of the Constitution.

The writer takes the view that the scheme for the introduction of the taxation of goods and services as can be gathered from the ANTS Bills is that it deals with one subject of taxation i.e. the taxation of the final private consumption of goods and services in Australia specified in the ANTS Bills. The term 'goods' has been defined in clause 195-1 of the ANTS (GST) Bill 1998 to mean any form of tangible personal property and the term 'thing' has been defined in the same clause to mean anything that can be supplied or imported. The ANTS (GST) Bill 1998 has rules to assess the final private consumption of various types of tangible personal property and services on which tax is to be imposed by the GST Imposition Acts. The starting point in this assessment is taxable supplies of goods and services as well as taxable importations but what is taxed is the final private consumption of goods and services.

It is similar in concept to the taxation of fringe benefits under the Fringe Benefits Tax Assessment Act 1986 (FBTAA 1986) where a range of benefits not being salary or wages is subject to a single fringe benefits tax (FBT). In the Second Fringe Benefits Tax Case Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ stated the following proposition of the 'unity of subject matter' covered by the FBTAA 1986:

The High Court rejected the argument that the FBTAA 1986 deals with separate categories of fringe benefits, and that it applies different criteria to each as if they were different subjects of taxation. The range of benefits covered by the FBTAA 1986 included car fringe benefits, debt waiver benefits, loan fringe benefits, expense payment fringe benefits, housing benefits, airline transport fringe benefits, board fringe benefits and property fringe benefits. Nevertheless, there was a 'unity of subject matter' in that the FBTAA 1986 provided for the taxation of fringe benefits regardless of the type of benefit rather than separate taxes on benefits derived from different types of property.

In the case of the GST law the private consumption liable to the GST includes the consumption of goods and services in Australia arising from various types of taxable supplies and taxable importations. The taxable supplies cover a wide range of goods and services including the supply of residential premises, sale of freehold interests, offshore supplies of other than goods and real property and financial supplies. Nevertheless, the 'unity of subject matter' in the ANTS (GST) Bill 1998 is the taxation of final private consumption of goods and services in Australia.

Conclusion

The ANTS (GST) Bill 1998 is not a law imposing taxation and it does not include provisions which may be laws imposing taxation under the first paragraph of section 55 of the Constitution. It is also not a law imposing duties of customs or duties of excise for the purpose of section 55 of the Constitution.

As such it is not necessary to consider whether the ANTS (GST) Bill 1998 deals with one subject of taxation. In the unlikely event that the ANTS (GST) Bill 1998 is held by the High Court to be a law imposing taxation, it deals with only one subject of taxation and that is that it deals with the imposition of taxation on the final private consumption of certain goods and services in Australia.

Endnotes

2. A list of the Bills is set out below:

   • A New Tax System (Aged Care Compensation Measures Legislation Amendment) Bill 1998
   • A New Tax System (Australian Business Number Consequential Amendments) Bill 1998
   • A New Tax System (Australian Business Number) Bill 1998
   • A New Tax System (Bonuses for Older Australians) Bill 1998
   • A New Tax System (Commonwealth-State Financial Arrangements) Bill 1999
   • A New Tax System (Commonwealth-State Financial Arrangements-Consequential Provisions) Bill 1999
   • A New Tax System (Compensation Measures Legislation Amendment) Bill 1998
   • A New Tax System (End of Sales Tax) Bill 1998
   • A New Tax System (Family Assistance) (Consequential and Related Measures) Bill (No. 1) 1999
   • A New Tax System (Family Assistance) Bill 1999
   • A New Tax System (Fringe Benefits Reporting) Bill 1998
   • A New Tax System (Goods and Services Tax Administration) Bill 1998
   • A New Tax System (Goods and Services Tax Imposition-Customs) Bill 1998
   • A New Tax System (Goods and Services Tax Imposition-Excise) Bill 1998
   • A New Tax System (Goods and Services Tax Imposition-General) Bill 1998
   • A New Tax System (Goods and Services Tax Transition) Bill 1998
   • A New Tax System (Goods and Services Tax) Bill 1998
   • A New Tax System (Income Tax Laws Amendment) Bill 1998
   • A New Tax System (Indirect Tax Administration) Bill 1999
   • A New Tax System (Luxury Car Tax Imposition-Customs) Bill 1999
   • A New Tax System (Luxury Car Tax Imposition-Excise) Bill 1999
   • A New Tax System (Luxury Car Tax Imposition-General) Bill 1999
   • A New Tax System (Luxury Car Tax) Bill 1999
   • A New Tax System (Medicare Levy Surcharge-Fringe Benefits) Bill 1998
   • A New Tax System (Personal Income Tax Cuts) Bill 1998
   • A New Tax System (Trade Practices Amendment) Bill 1998
   • A New Tax System (Wine Equalisation Tax and Luxury Car Tax Transition) Bill 1999
   • A New Tax System (Wine Equalisation Tax Imposition-Customs) Bill 1999
   • A New Tax System (Wine Equalisation Tax Imposition-Excise) Bill 1999
   • A New Tax System (Wine Equalisation Tax Imposition-General) Bill 1999
   • A New Tax System (Wine Equalisation Tax) Bill 1999.

3. Explanatory Memorandum to the A New Tax System (Goods and Services Tax Imposition3/4 General) Bill 1998, p. 1.

4. Reference should be made to Bills Digest No. 76 1998-99 Primary Industries (Excise) Levies Bill 1998 as to when an imposition would be a tax, a duty of excise or a duty of customs.

5. ibid., paragraph 3.14, p. 31

6. ibid., paragraph 3.52, p. 41.

7. (1911) 12 CLR 321, (1926) 38 CLR 153 and (1958-59) 101 CLR 11 respectively.

8. (1944) 70 CLR 362 at p. 373.

9. State Chamber of Commerce and Industry v The Commonwealth of Australia (1987) 163 CLR 329.

10. (1922) 31 CLR 1 at p. 14.

11. (1926) 38 CLR 153 at pp. 209, 215-216; (1951) 82 CLR 547 at p. 564 and (1958-59) 101 CLR 11 at pp. 19-21 respectively.

12. Explanatory Memorandum to the A New Tax System (Goods and Services Tax) Bill 1998; Executive Summary; p. 6.
13. (1917) 23 CLR 119 at p. 135.
14. (1941-1942) 66 CLR 198 at pp. 222-223.

15. State Chamber of Commerce and Industry v The Commonwealth of Australia (1987) 163 CLR 329 at p. 344.

16. Explanatory Memorandum to the A New Tax System (Goods and Services Tax) Bill 1998; Executive Summary; p. 6.
17. (1941-1942) 66 CLR 198 at pp. 223.

18. ibid., p. 223.

19. State Chamber of Commerce and Industry v The Commonwealth of Australia (1987) 163 CLR 329 at p. 344.

20. (86) (1916) 22 CLR 367 at pp.378-379.

    (87) (1917) 23 CLR at pp. 134-136.

    (88) (1942) 66 CLR, at p. 211.

21. Senate Hansard, 23 April 1999, p. 3668.

22. This may include any of the Bills listed in Endnote 1.

23. Resch v Federal Commission of Taxation (1941-1942) 66 CLR 198 at pp. 223.

24. State Chamber of Commerce and Industry v The Commonwealth of Australia (1987) 163 CLR 329 at p. 349.