Budget 2009 10: Legal issues and
the Attorney-General's portfolio
Alcopops customs and excise tariffs
Kirsty
Magarey
The ‘alcopops’ customs and excise tariffs have been
a topic of recent controversy.[1] These duties are now being collected by the
Government under new tariff proposals, commencing on 14 May
2009.[2]
Earlier tariff proposals operated from 27 April 2008 and enabled
the Government to collect customs and excise duties on alcopops.
The legislation designed to enshrine the increased rates was
defeated in the Senate when it was first introduced.[3]
The increased excise duty had enabled the collection of $394
million (this figure included the customs equivalent) on beverages
falling within that definition of ‘other excisable
beverages’ (which includes alcopops) between May 2008 and
October 2008.[4]
The Excise Tariff Validation Bill 2009 and the Customs Tariff
Validation Bill 2009 passed through both houses of Parliament on
Tuesday 12 and Wednesday 13 May 2009. These Bills ensured that the
monies collected under the first tariff were validly collected, and
now constitute actual revenue.
The second alcopops tariff proposals are now being used as a
basis for revenue collection and, barring a successful challenge to
this form of revenue raising, will need to be validated by
legislation before 14 May 2010.
The collection of alcopops revenue was challenged in the case of
Suntory (Aust) Pty Ltd v Commissioner of Taxation.[5] The general
practice of revenue collection without legislative authority was
not directly under attack because the case was concerned with the
collection of revenue after the proposed validating legislation had
been rejected. Nevertheless the submissions made some
comments which call into question the collection of revenue in this
manner. In particular there were criticisms made of the
Excise Tariff Act’s general practice of collecting revenue
without a sufficient legislative basis, and also on section 114 of
the Excise Tariff Act, which protects the actions of officials
collecting the excise.[6]
The Suntory case was stayed and listed to be considered
after the first Tariff proposal fully ‘expired’ on 13
May 2009. The introduction of new tariff proposals with the
resultant extension of section 114’s protections could serve
to delay further the hearing of the case.
[1].
Alcopops are ready-mixed drinks and fall under the ‘other
excisable beverages not exceeding 10% by volume of alcohol’
schedule of the Excise Tariff Act 1921. ‘Other
excisable beverages’ are defined as any beverage containing
more than 1.15% alcohol by volume, excluding beer, brandy or wine.
(Schedule 1 of the Excise Tariff Act: Excise Duties item 2 and
definitions given in the Schedule).. See further M Thomas and P
Pyburne, Excise Tariff Amendment (2009 Measures No. 1) Bill
2009, Customs Tariff Amendment (2009 Measures No. 1) Bill
2009, Bills Digest No. 100-101, Parliamentary Library,
Canberra, 2009, viewed 13 May 2009, http://www.aph.gov.au/library/pubs/bd/2008-09/09bd100.pdf.
See also K Magarey Alcopops makes the House see double: 'the
proposed law' in section 57 of the Constitution, Research
paper, no. 32, 2008-09, Parliamentary Library, Canberra, 2009,
viewed 15 May 2009, http://www.aph.gov.au/library/pubs/rp/2008-09/09rp32.pdf
[2]. These were both motions by
the Minister for Health and Ageing, Nicola Roxon: Excise Tariff
Proposal (No. 1) 2009,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Ftariffs%2Ftariffs_7ef56995-41da-4872-b57c-f5057377af4a%22
and Customs Tariff Proposal (No. 3) 2009
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Ftariffs%2Ftariffs_a4eaeec1-cfa8-436e-b4ca-25f2d81bbe6e%22
[3]. Customs Tariff
Amendment (2009 Measures No. 1) Bill 2009, viewed 18 May 2009,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4040%22
; Excise Tariff Amendment (2009 Measures No. 1) Bill 2009, viewed
18 May 2009,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4039%22.
Both Bills were introduced on 11 February 2009 and were defeated in
the Senate on 18 March 2009.
[4]. S Conroy (representing the
Treasurer), ‘Answer to Question on Notice no. 1214’,
Senate Debates, 13 May 2009, p. 138, viewed 18 May 2009,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F2009-05-13%2F0209%22
[5].
Suntory (Aust) Pty Ltd v Commissioner of Taxation [2009]
FCA 348, 15 April 2009, viewed 20 April 2009,
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2009/348.html
[6].
See further K Magarey, Alcopops makes the House see double:
'the proposed law' in section 57 of the Constitution, viewed
18 May 2009, http://www.aph.gov.au/library/pubs/rp/2008-09/09rp32.pdf