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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 13 - Financial legislation

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Constitutional provisions relating to financial legislation

Section 53 of the Constitution

The term financial legislation refers to the two categories of proposed laws or bills which are distinguished by section 53 of the Constitution and which have different procedures applied to them by the provisions of that section.

The rationale of these provisions is to reserve to the executive government the 'initiative in proposing appropriations and impositions of taxation, without affecting the substantive powers of the Senate.

Section 53 provides as follows:

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed 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 fines 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 any 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.

Section 53 thus provides that the two Houses of the Parliament have equal powers in relation to all proposed laws except as provided by the section. The categories of proposed laws to which exceptions apply are proposed laws imposing taxation and proposed laws appropriating revenue or moneys. Section 53 provides that:

  • bills to appropriate money or to impose taxation may not originate in the Senate
  • the Senate may not amend a bill for imposing taxation
  • the Senate may not amend a bill for appropriating money for the ordinary annual services of the government
  • the Senate may not amend a bill so as to increase any proposed charge or burden on the people.

The section further provides that where the Senate may not amend a bill, it may at any stage request the House of Representatives to do so. This provision of section 53 refers to a bill which the Senate may not amend, but has always been interpreted as applying to a bill which the Senate may amend but where an amendment would be contrary to the provision relating to proposed charges or burdens, the view being taken that the section does not prevent requests in that circumstance. The provision also refers to the Senate requesting "the omission or amendment of any items or provisions" in a bill which is not amendable by the Senate. This has been interpreted as not authorising a request for the insertion of a completely new item in such a bill.[1] This supposed implied limitation, however, was not observed in the early years of the Senate,[2] and has also not been observed in recent times.[3] As with requests for amendments to bills which are amendable by the Senate, the view is taken that section 53 does not prevent requests being made other than in the circumstances listed in the section.

The provisions of section 53 are usually described as limitations on the power of the Senate in respect of financial legislation, but they are procedural limitations only, not substantive limitations on power, because the Senate can reject any bill and can decline to pass any bill until it is amended in the way the Senate requires. In particular, the distinction between an amendment and a request is purely procedural: in one case the Senate amends a bill itself, in the other it asks the House of Representatives to amend the bill. In both cases the bill is returned to the House of Representatives for its agreement with the proposed amendment. In the absence of agreement the Senate can decline to pass the bill.

The provisions of section 53 therefore have a purely procedural application, to determine whether amendments initiated by the Senate should take the form of amendments made by the Senate or requests to the House of Representatives to make amendments. The only effect of choosing a request instead of an amendment is that a bill makes an extra journey between the Senate and the House.[4]

While appropriation bills and bills imposing taxation may not originate in the Senate, this does not mean that the Senate is not an equal partner with the House of Representatives in actually making appropriations. Thus the first Senate insisted that words be removed from the preamble of the Supply Bills 1901 implying that the granting of appropriations was the work of the House of Representatives, and required details of items of expenditure.[5] Similarly, the Senate caused to be removed from the Governor-General's opening speech words implying that in the granting of appropriations the House of Representatives had some priority.[6]

The Senate has also exercised its right to decline to pass appropriation bills and items in such bills until relevant information is provided.[7]

Section 53 contains a qualifying clause providing that a bill is not to be taken to be an appropriation bill or to impose taxation "by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services ". Thus bills containing such provisions may originate in the Senate and may be amended by the Senate.[8] Bills imposing fees for licences or fees for services are therefore usually treated as amendable bills, but in recent times, having regard to the possibility of fees being held by the High Court to be taxes, some bills for imposing fees have been drafted as bills imposing taxation and have been treated as such by the Senate.[9]

Constitutional safeguards: sections 54 and 55 of the Constitution

The Constitution contains two sections which are designed to ensure that the Senate is not unduly inhibited in its consideration of legislation by the conditions imposed upon it by section 53.

Section 54 provides that a proposed law which appropriates money for the ordinary annual services of the government must deal only with such appropriation. This means that appropriations for purposes other than the ordinary annual services of the government, or provisions dealing with appropriations, which the Senate may amend, may not be combined in one bill with provisions which the Senate may not amend. This ensures that the Senate is not prevented from amending provisions which do not appropriate money for the annual services of the government because of such provisions being linked with such appropriations in a single bill. Such a linkage of provisions is usually referred to as "tacking", and section 54 seeks to prevent "tacking".

Section 55 of the Constitution provides:

  • laws imposing taxation must deal only with the imposition of taxation and any provision dealing with any other matter is of no effect
  • laws imposing customs duties must deal only with customs duties, and laws imposing excise duties must deal only with excise duties
  • other laws imposing other kinds of taxes must deal only with one subject of taxation.

This section is also designed to prevent the combination in a single bill of matters amendable by the Senate with non-amendable matters, and to ensure that different taxes are not combined in one bill so that the Senate is presented with a choice of agreeing to all taxes or agreeing to none if the House of Representatives will not make amendments.

These sections use the same expressions to distinguish the categories of bills with which they deal as section 53, and interpretation of the three sections is therefore of necessity closely connected.

There is a significant difference, however, between section 55 and the other two sections. Sections 53 and 54 refer to proposed laws, and do not impose any prohibitions on the contents of laws resulting from the enactment of those proposed laws. Nor do they impose any remedies against the two Houses for any breach of the conditions relating to dealings with proposed laws set out in the sections. It is therefore generally agreed that these sections are non-justiciable, that is, the High Court cannot enforce compliance with the sections in relation to either the proceedings followed by the Houses in dealing with bills, or the contents of bills, and in no case has the High Court done so.[10]

Section 55, on the contrary, refers to laws, and is therefore justiciable. The High Court may enforce compliance with the provisions relating to the contents of laws, and has done so in numerous cases. The Court therefore has the ability to determine the interpretation of expressions used in section 55, and such interpretations, while not binding on the Houses in relation to section 53, have generally been followed by the Houses in the interpretation of that section. Thus a proposed law would be regarded as imposing taxation for the purposes of section 53 if when enacted it would be a law imposing taxation within the meaning of section 55 as interpreted by the Court.[11] The High Court has indicated that laws imposing taxation may include provisions for assessment, collection and recovery of taxation where it is difficult to separate them, contrary to the strict separation of these matters usually observed by the drafters of government bills.[12]

The interpretation of the expressions contained in sections 53, 54 and 55 is further dealt with below in the context of determining when amendments moved in the Senate should take the form of requests to the House of Representatives. It must be remembered, however, that the interpretation of the expression "imposing taxation", and the other expressions referring to taxation in section 55, is a question which may be determined by the High Court for the purpose of the application of that section to the validity of laws, whereas the interpretation of the expressions used in sections 53 and 54 is a matter for the two Houses to determine in their dealings with each other.

Governor-General's messages: section 56

Section 56 of the Constitution provides:

A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated.

The purpose of this section is usually stated to be the preservation of the exclusive right of the executive government to initiate appropriations.

The reference in the section to a measure being passed is taken to refer to passage by the House in which the measure originates. In accordance with this interpretation, messages by the Governor-General recommending appropriations for the purposes of particular appropriation bills are usually reported to the House of Representatives before the bills are passed. There have been occasions, however, of messages referring to bills being reported after the bills have been passed by the House. Moreover, messages are usually framed so as to refer to any appropriation required by a bill or by any amendment to be moved by a minister, without any specification of the appropriation authorised by the messages. The messages are, therefore, largely a formality, but they reinforce the ministry's control of the House of Representatives.

As appropriation bills must originate in the House of Representatives, the section applies in practice only to that House, and Governor-General's messages of this kind are therefore not produced in the Senate. The reason for the reference in the section to "the House in which the proposal originated " was perhaps that the section was intended to apply in respect of bills which impose penalties or fees, which are not appropriation bills for the purposes of section 53 and which may therefore originate in the Senate.[13]

Requests and section 57

Section 57 of the Constitution, which authorises the simultaneous dissolution of both Houses of the Parliament by the Governor-General in prescribed circumstances of disagreement between the Houses (see Chapter 21), refers to the Senate rejecting, failing to pass or passing a bill with amendments to which the House of Representatives will not agree. It is a significant question, which has not been considered, whether the Senate in making or pressing requests for amendments to a bill could be said to have failed to pass it within the meaning of the section. In that circumstance the Senate has not passed the bill with amendments. Certainly if the Senate makes or presses requests it cannot be said to have failed to pass the bill until the House of Representatives has definitely rejected the requests and the Senate has then had an opportunity to reconsider them. In that respect the government appears to have been in error in declining to consider the Senate's pressed requests in relation to the Sales Tax Amendment Bills (Nos 1A to 9A) 1981.[14]

1. Ruling of Chairman of Committees, 5/5/1936, J.186.
2. For example, in relation to the Customs Tariff (British Preference) Bill 1906, 5/10/1906, J.190.
3. 8/11/1985, J.570-1; 7/4/1989, J.1522-4; 22/6/1992, J.2545.
4. See under Procedure for dealing with financial legislation, below; On the procedural character of section 53, see the judgment of the High Court in Western Australia v Commonwealth (1995) 183 CLR 373 at 482.
5. 14/6/1901, J.36; 20/6/1901, J.42.
6. 14/4/1904, J.27.
7. 20/5/1975, J.655-7; 28/5/1992, J.2349-50.
8. See ruling of President Baker, SD, 6/6/1901, p. 763.
9. Air Caledonie International v Commonwealth (1988) 165 CLR 462; but see also Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133.
10. The non-justiciable character of the requirements of section 53 was explicitly referred to in the Constitutional Convention Debates: Adelaide, 1897, pp. 576-7; and by the High Court in Osborne v Commonwealth (1911) 12 CLR 321 at 336, and Western Australia v Commonwealth (1995) 183 CLR 373 at 482.
11. See also below under Decision as to amendments or requests. For examination by the High Court of the application of section 55, see Austin v Commonwealth (2003) 215 CLR 185; Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004) 220 CLR 388.
12. See below, under When are requests required? (b) bills imposing taxation.
13. See J. Quick and R.R. Garran, Annotated Constitution of the Australian Commonwealth, 1901, pp. 682-3.
14. See SD, 22/10/1981, pp. 1547-8, particularly the statement by Senator Harradine that the action taken by the government in the House of Representatives "was not only unconstitutional but also ... ensured that the time clock for action to be taken under the dissolution provisions of section 57 of the Constitution could not run ".