Bills Digest No. 34 1999-2000 Diesel and Alternative Fuels Grants Scheme Bill 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Diesel and Alternative Fuels Grants Scheme Bill 1999

Date Introduced: 22 June 1999

House: House of Representatives

Portfolio: Treasury

Commencement: The Act commences on the commencement of the proposed Diesel and Alternative Fuels Grants Scheme (Administration and Compliance) Act 1999. However, commencement is also conditional on the adoption of certain motor vehicle emission standards, and the appropriation of funds for specified programs aimed at improving the environment as provided for in clause 2.

Purpose

The measures in this Bill (the Grants Bill) and in the Customs and Excise Amendment (Diesel Fuel Rebate Scheme) Bill 1999 (the Rebates Bill) implement the proposal in the A New Tax System (ANTS)(1) as modified by the agreement between the Government and the Australian Democrats:

  • to provide assistance to regional areas, by a Diesel and Alternative Fuels Grants Scheme (DAFGS) to reduce the cost of diesel and certain other fuels used in transporting goods and passengers, and
  • to extend the Diesel Fuel Rebate Scheme (DFRS) to additional activities and other specified fuels, and to allow the full rebate to activities now receiving only a part rebate.

The purpose and background to the Grants Bill and the Rebates Bill are considered in this Bills Digest. The reader is referred to the Bills Digest on the Rebates Bill for an explanation of the main provisions of that Bill.(2)

Background

A New Tax System

Under the ANTS scheme, the Government undertook to reduce the amount of excise on diesel. The proposal had two elements: a reduction (of about seven cents) in the amount of excise to 36 cents per litre, and a 'GST credit' equal to 'around half the excise paid on the diesel'. The GST credit is not to be confused with the 'input tax credit' under which businesses will be able to claim the GST paid on fuel used for business purposes. In the Grants Bill the credit is termed 'grants'. The effect of these two elements would have been to reduce the 'effective' rate of excise paid from 43 cents to 18 cents per litre. (3)This would apply to vehicles weighing over 3.5 tonnes and to railways. Vehicles weighing less than 3.5 tonnes would receive a GST credit 'equal to the GST paid' on the diesel they used.(4)

Diesel fuel rebate scheme (DFRS)

The ANTS scheme also envisaged that the GST credit would replace the DFRS. Under this scheme - whose legal basis is the Customs Act 1901 and the Excise Act 1901 - a rebate of duty is paid for diesel used in certain activities. These activities are 'off-road', and include agriculture, mining, fishing, forestry, residential premises, hospitals, aged persons homes, nursing homes and other medical institutions. The precise rate of the rebate depends on the nature of the activity in which the fuel is used. (All States, except Tasmania, also exempted the off-road use of diesel from the petroleum franchise fees).

The abolition of the DFRS would have meant that all activities - on-road and off-road - would pay the same effective rate of excise, thus abolishing the subsidy that off-road activities receive. While the abolition of the DFRS would have raised the costs of off-road activities, the reduction in the effective rate of excise would have lowered their costs. From an economic neutrality perspective - of not favouring some activities over others - the ANTS proposal would have been an improvement over the DFRS, since it would mean that certain activities were no longer subsidised. The ANTS proposal would also have been an administrative improvement since the DFRS is complicated to administer and is subject to fraud. The Australian National Audit Office in a May 1996 report titled Australian Customs Service - Diesel Fuel Rebate Scheme, was critical of aspects of the administration of the scheme.

Reaction to the ANTS proposal

Reaction to the ANTS proposals was mixed. Favouring the proposal were those who saw the proposal as reducing the cost of transporting goods especially to regional areas. The proposal would have the effect of reducing the cost of inputs into the road and rail transport industries. Given the generally competitive nature of the road transport industry, these lower costs would be reflected in lower freight charges - and passenger fares - thus reducing the cost of supplying goods and services including in regional areas.

Criticism of the proposals centred on alleged adverse environmental consequences. Groups opposing the proposal saw the reduction in excise as leading to an increase in the amount of diesel used. That, in turn, would increase air pollution, with adverse health effects and increased production of 'greenhouse' gases. In particular, it was noted that the ANTS proposal would mean that the effective rate of excise would be the same in both major metropolitan and regional areas. Given that the concentration of diesel pollutants is greater in urban than in regional areas, some advocated that the cost of diesel used in urban areas should be greater than in regional areas.

Agreement between the Government and the Australian Democrats

The refusal of the Senate to pass the ANTS legislation led to the agreement - announced on 28 May 1999 - between the Government and the Australian Democrats, which modified the ANTS proposal in a number of important respects. The key points of the agreement are set out below.

  • The effective rate of excise will rise by two cents to 20 cents compared to the ANTS package, by reducing the GST credit.
  • The agreement seeks to target assistance to regional areas by limiting the availability of the GST credit to regional areas.
  • Eligibility for the grants would be limited to vehicles weighing between 4.5 and 20 tonnes travelling 'in service of regional areas', and to all vehicles weighing more than 20 tonnes.
  • 'Regional' is defined widely. In general, the agreement specifies that diesel used in major urban areas is not subject to the grant. However, region is also defined to include all of Tasmania. That the agreement and clause 10 of the Grants Bill discriminate among the States and Territories as well as areas within States raises the question of whether clause 10 of the Grants Bill is constitutional. This issue is discussed under the section on Concluding Comments in this Digest.
  • A consequence of the agreement is that the DFRS is not only retained but is expanded. The agreement specifies that the scheme be extended to provide full credits (100 per cent rebate) for certain off-road activities now eligible for only part credits, and that the rebate should also apply to 'like fuels'. These changes to the DFRS are dealt with in the Rebates Bill.
  • The effect of the agreement is therefore to have two schemes for reducing the cost of the excise on diesel: the DFRS for off-road use, and the DAFGS proposed in the Grants Bill for on-road use in regional areas. The initial proposal in ANTS for a GST credit as opposed to credits on inputs appears to have been merged with the grants under the DAFGS. The agreement will increase both the cost and complication of administration compared to the ANTS scheme. Indeed the administrative arrangements for the DAFGS are a major issue and, according to the Minister's Second Reading Speech, will be the subject of a further Bill to be introduced in the spring sittings of Parliament.

Main Provisions

Clause 4 of the Bill notes that the Government intends to combine the DFRS and the DAFGS into one scheme - the Energy Grants (Credits) Scheme. The stated purposes of the latter scheme - as set out in subclauses (2) and (3) - are to encourage the use of 'cleaner' fuels, 'maintain entitlements' under the DFRS and DAFGS and, in the case of diesel, to restrict entitlements to ultra low sulphur fuel from 1 January 2006.

Clause 5 contains definitions including of 'alternative fuel'. This encompasses compressed natural gas, liquefied petroleum gas, recycled waste oil, ethanol, canola oil, and other fuels as specified by regulation.

Conditions for eligibility for grants

Part 2 of the Grants Bill deals with the conditions attached to eligibility to receive fuel grants. These conditions include the need to register using the 'approved form' [subclause 7(1)].

Vehicles of 20 tonnes or more

Clause 9 of the Grants Bill sets out the conditions for entitlement to grants for vehicles of 20 tonnes or more. The main requirement is that the diesel fuel or alternative fuel is used in carrying on an enterprise in operating a vehicle 20 tonnes or more on any public road in Australia.

Vehicles of 4.5 tonnes or more, but less than 20 tonnes

Clause 10 of the Bill sets out the conditions when an entity which uses diesel or alternative fuel in a vehicle of 4.5 tonnes or more, but less than 20 tonnes (referred to as a 'specified vehicle' in this Digest) may be entitled to a grant. The special requirement of its use is set out in subclause 10(2).

Subclause 10(2) of the Grants Bill provides that a person is only entitled to the grant where diesel fuel or alternative fuel is used in operating a specified vehicle on a journey:

(a)  between a point outside the metropolitan areas and another point outside the metropolitan areas, or (b)  between a point outside the metropolitan areas and a point inside a metropolitan area, or (c)  between different metropolitan areas.

Thus a specified vehicle using diesel fuel or alternative fuel will not be entitled to a grant for operating a vehicle within a metropolitan area.

Subclause 6(1) of the Grants Bill provides the following definition of 'metropolitan areas'.

(1)    These are the metropolitan areas:

(a)    the Newcastle-Sydney-Wollongong metropolitan area

(b)    the Melbourne-Geelong metropolitan area

(c)    the Sunshine Coast-Brisbane-Gold Coast metropolitan area

(d)    the Perth metropolitan area

(e)    the Adelaide metropolitan area, and

(f)    the Canberra metropolitan area.

(2)  The area included in each metropolitan area referred to in subsection (1) is the area specified in the              &nbspregulations in relation to that metropolitan area.

There are three aspects of the definition of 'metropolitan areas' which may have constitutional implications.

Exclusion of any part of Tasmania from the definition of 'metropolitan area'

It will be seen that no part of Tasmania is classified as a 'metropolitan area'. Hence subclause 10(2) of the Grants Bill shows a preference in favour of the whole of Tasmania in that the grant will be available for operating a specified vehicle using diesel fuel or alternative fuel within the whole of Tasmania whereas in the case of New South Wales, Victoria, Queensland, South Australia and Western Australia operations within metropolitan areas will not qualify for the grant. Consequently, it may be taken that these latter States have been discriminated against in the DAFGS in comparison with Tasmania.

Grants for interstate travel using diesel or alternative fuels in specified vehicles

Paragraph 10(2)(a) which provides that a grant is due where diesel or alternative fuel is used in operating a specified vehicle on a public road between a point outside the metropolitan areas and another point outside the metropolitan areas, may include interstate travel. This provision may also cover intrastate travel.

Paragraph 10(2)(b) states that the grant will be available where diesel fuel or alternative fuel is used in a specified vehicle on a journey on a public road between a point outside the metropolitan areas and a point inside a metropolitan area. This provision could cover interstate travel although it may cover intrastate travel as well where the journey begins and ends within a State.

Under paragraph 10(2)(c) a grant is due where diesel or alternative fuel is used in operating a specified vehicle on a public road between different metropolitan areas. This would cover the case of interstate travel. This provision can only include interstate travel, on the basis of the definition of 'metropolitan areas' in subclause 6(1), subject to regulations which may be made under subclause 6(2).

 

Grants for intrastate travel using diesel or alternative fuels in specified vehicles

As was indicated above the grant is also available under paragraphs 10(2)(a) and 10(2)(b) for intrastate travel in specified vehicles.

The constitutionality of the provisions in clause 10 is dealt with under 'Concluding Comments' in this Digest.

Clause 11 deals with the amounts of the fuel grants. These are essentially the volume of fuel used multiplied by the amount of the grant per litre. The grants will be promulgated by regulation.

Clause 12 specifies that fuel grants will not be payable on fuel used on or after 1 July 2002, when the proposed Energy Grants (Credits) Scheme is to come into operation.

Subclause 10(2) specifies that fuel grants are intended only for fuel used on-road, whereas the DFRS is for fuel used off-road. Clause 13 reinforces this point and is designed to exclude 'double dipping' by specifying that fuel grants cannot be claimed for fuel eligible for rebate under the DFRS.

Concluding Comments

Constitutional Issues

The measures in the Rebates Bill and the Grants Bill provide for two schemes for reducing the cost of customs and excise duty for certain users of diesel and alternative fuels: the DFRS for off-road use, and the DAFGS proposed in the Grants Bill for on-road use in regional areas. Basically, the measures in both Bills are intended to assist business by reducing the cost of transport by paying back to users of diesel or alternative fuels the customs duty or excise duty paid under the Customs Act 1901 or the Excise Act 1901.

The measures in clause 10 of the Grants Bill in particular are designed to meet concerns of pollution in metropolitan areas. The Government has stated that the measures in the Grants Bill are not based on the taxation power in section 51(ii) of the Constitution and it is therefore proposed to examine some of the constitutional powers the Commonwealth may rely on to support the measures in clause 10 of the Grants Bill to allay environmental concerns.

A recent Senate Committee report titled Commonwealth Environment Powers considered the range of powers available to the Commonwealth to support environmental legislation. (5)The report noted that in Murphyores Inc. Pty Ltd v Commonwealth(6) the High Court had held that there was no constitutional obstacle to the Commonwealth's use of various heads of power to regulate activities in order to protect and conserve the environment, even though those heads of power did not necessarily have any apparent environmental purpose behind them. So long as Commonwealth environmental legislation rests on some head of power - even though not directly touching the environment - the Commonwealth is entitled to act for environmental reasons alone.(7)

The various heads of power relied upon by the Commonwealth to enact environmental legislation was noted in the report as follows.

[C]ommonwealth environmental legislation frequently relies on various heads of power in order to make certain that the federal legislation passes Constitutional muster. Key Commonwealth powers that have been used repeatedly to support legislation for environmental purposes include: the trade and commerce power (section 51(i)), the taxation power (section 51(ii)), the quarantine power (section 51(ix)), the fisheries power (section 51(x)), the corporations power (section 51(xx)), the race power (section 51(xvi)), the external affairs power (section 51(xxix)), the incidental power (section 51(xxxix)), the power over Commonwealth instrumentalities and public service (section 52), the power over customs, excise and bounties (section 90), the financial assistance power (section 96), and the territories power (section 122).(8)

In this section of this Digest the constitutional basis for the provisions of clause 10 of the Grants Bill will be examined. It appears from the Second Reading Speech that the Commonwealth does not rely on the taxation power, and consequently the power over customs and excise as these are species of taxes, to support the Grants Bill. The Second Reading Speech stated:

The Government's objective has always been to reduce the price of transport fuels for business. However, in order to honour the agreement reached with the Democrats, it is no longer possible to deliver this entirely through the tax system. As the intention is to offset costs for only a specified part of the transport fleet and its users - those serving regional areas - the tax system is, on legal advice, an inappropriate means by which to deliver the benefits. Thus we will deliver this measure through a grants scheme. In addition, the use of a broad-ranging grants scheme will make the transition to the new long-term scheme of energy credits foreshadowed in the Bill much easier, reducing the impact on industry of multiple changes to arrangements.(9)

In this Digest the question whether the grants power (section 96), the trade and commerce power (section 51(i)) and the bounties power (section 51(iii)) support the measures in the Grants Bill will be examined. This will be accompanied by considering the question whether clause 10 shows a preference to Tasmania in the regulation of trade and commerce contrary to the provisions of section 99 of the Constitution.

Finally, this section of the Digest will explain why the Commonwealth has not relied on the taxation power in section 51(ii) of the Constitution. It indicates that the discrimination shown in favour of Tasmania in clause 10 of the Grants Bill may breach the requirement in section 51(ii) that laws dealing with taxation shall not discriminate between States or parts thereof.

Is the Grants Bill dependent upon the grants power in section 96 of the Constitution?

The Commonwealth has power to make grants under section 96 of the Constitution. The relevant parts of section 96 are as follows:

During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

The literal meaning of the section is that the Commonwealth may make grants to any State on such terms and conditions that the Parliament thinks fit. Section 96 does not authorise the making of grants to individuals or business entities.

Clause 7 of the Grants Bill authorises an entity to apply for registration for entitlements to fuel grants in respect of a particular vehicle or vehicles used in an enterprise. Entity is defined in clause 5 and has the same meaning as in section 37 of the A New Tax System (Australian Business Number) Act 1999. As defined in section 37 it has a very wide meaning and includes an individual, a body corporate, a corporation sole, a body politic, a partnership, any other unincorporated association or body of persons, a trust and a superannuation fund. Enterprise is defined in clause 5 and has the same wide meaning as in section 38 of the A New Tax System (Australian Business Number) Act 1999.

It would therefore appear that the Grants Bill does not depend on the grants power for its constitutionality as the grants are not being made through the States but directly to entities.

The certain exception to the rule against discrimination is when the Commonwealth makes grants directly to the States under the grants power in section 96 of the Constitution. Thus the Commonwealth may tax residents of all States equally but then provide for the reimbursement of certain residents in parts of one or other State under section 96 without offending section 51(ii). This was the view of the High Court and confirmed by the Privy Council in W. R. Moran Pty Ltd v DFCT (NSW):

[T]here is nothing in section 51 to prevent the Commonwealth Parliament from passing measures in concert with any State or States with a view to a fair distribution of the burden of the tax proposed, provided always that the Act imposing taxes does not itself discriminate in any way between States or parts of States, and that the Act granting pecuniary assistance to a particular State is in its purpose and substance unobjectionable. (10)

In Moran, five Commonwealth Acts imposed certain taxes on wheat and flour and a sixth Commonwealth Act provided for the appropriation of the proceeds of the taxes in payments to the States, including an additional payment to Tasmania. An Act of the State of Tasmania provided for the distribution of such additional payment amongst payers of tax on flour consumed in that State. The object of the scheme was to ensure that wheat growers in all the States were paid an affordable average price for wheat and to raise the necessary sum by imposing a tax on flour sold in Australia for home consumption.

Again, in Grasstree Poultry Enterprises P/L v Bycroft(11)a federal poultry levy was imposed on all States; the States were reimbursed under section 96 discriminately and the Commonwealth agreed with Queensland's plan to allocate 97 percent to North Queensland. A challenge to this scheme was rejected by the High Court.

The Commonwealth could have made fuel grants available to the States for payment to qualifying entities but this option which was available to the Government has not been used in implementing the DAFGS.

 Is the Grants Bill based on section 51(i) of the Constitution?

Section 51(i) of the Constitution is generally referred to as the trade and commerce power and provides:

The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

Trade and commerce with other countries, and among the States:

It has been held that the phrase 'trade and commerce' in section 51(1) is wide enough to include not only the sale and disposition of goods, but the transport of goods and persons. Further, it not only includes the transport of goods and persons incidentally to the disposition of goods, but includes such transport as an end in itself. In Australian National Airways Pty Ltd v Commonwealth, Dixon J, as he then was, expressed the view that the commerce power was wide enough to include all carriage for reward of goods or persons between States and was within Commonwealth legislative power.

There is, I think, some logical force in the view that, if inter-State transportation is relegated to the position of an operation that is merely ancillary or incidental to the commercial interchange of goods among the States and is not of itself commerce, then it follows that the Airlines Act is wider than the power. For it provides an air service, and an exclusive air service, for passengers independently of the commercial or non-commercial character of their journey. But I am not prepared to accept the hypothesis and to give effect to it as restrictive of the trade and commerce power. On the contrary, I shall act upon the opinion that, if not all inter-State transportation, at all events all carriage for reward of goods or persons between States is within the legislative power, whatever may be the reason or purpose for which the goods or persons are in transit. (12)

Lane takes the view that regulation of, or government engagement in, overseas or interstate trade is within section 51(i). Relevant examples of regulation are penalties for misdescriptions of imports or exports(13) and customs controls of drugs and pornography.(14) Lane adds that the Commonwealth can negatively, control and protect or even altogether prohibit some forms of trade, making due allowance for section 92 in interstate trade.(15)

Thus the making of grants, which is an inducement and therefore a negative penalty, under the Grants Bill to regulate the use of diesel and other specified fuel for interstate transport in specified vehicles will be within the commerce power in section 51(I) of the Constitution.

The Commonwealth could therefore rely on the trade and commerce power to support the payment of the amounts described as grants in the Grants Bill as part of a scheme to regulate the use of diesel and alternative fuels for interstate transport.

Whilst regulation of, or government engagement in, overseas or interstate trade is within section 51(i), the High Court has also invoked the implied incidental power in order to extend section 51(i) to take in an intrastate act. The underlying principle was stated by Fullagar J in O'Sullivan v Noarlunga Meat Ltd (No. 1)(16) as follows.

Where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor and without special mention, every power and every control the denial of which would render the grant itself ineffective.

In Noarlunga Meat the High Court permitted federal control of premises where beasts were slaughtered for export.

The Commonwealth may therefore rely on the trade and commerce power to support the payment of the amounts described as grants for intrastate travel in specified vehicles under subclause 10(2) in the Grants Bill as part of a scheme to regulate the use of diesel and alternative fuels.

The main obstacle to the use of the trade and commerce power in relation to the Grants Bill lies in section 99 of the Constitution which requires that the Commonwealth should not show a preference to one State or a part thereof in any law regulating trade or commerce. Section 99 states:

The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

By treating the whole of Tasmania only, among all the States, as a regional area clause 10(2) would appear to breach section 99 of the Constitution.

A preference under section 99 must be tangible, definite and commercial or given in connection with commercial dealings. In the words of Latham CJ in Elliott v The Commonwealth:

What section 99 prohibits is giving preference 'to one State or any part thereof over another State or any part thereof'. In order to apply this section it is necessary to determine that there is a preference: it is necessary also to ascertain what the preference is, and to identify the State or part of a State to which the preference is given and the other State or part of another State over which the preference is given. The Constitution appears to be based upon the view that differentiation in some laws or regulations of trade or commerce (namely, those which do not relate to taxation, including customs duties, or bounties) may be proper and desirable or at least permissible, even as between different States, but such differentiation must not amount to the giving of preference to one State or any part thereof.(17)

As clause 6 of the Grants Bill does not classify any part of Tasmania as a 'metropolitan area' a grant is available to a vehicle 4.5 tonnes or more but less than 20 tonnes, using diesel or alternative fuel for transporting passengers or goods on public roads throughout Tasmania. This is a preference in favour of the whole of Tasmania in comparison with New South Wales, Victoria. Queensland, South Australia and Western Australia in that similar grants will not be available for operations within metropolitan areas in those States.

This commercial benefit would appear to satisfy the tests laid down by Latham CJ to make clause 10 a provision that contravenes section 99 of the Constitution.

Are the grants to be paid under the Grants Bill bounties under section 51(iii) of the Constitution?

A bounty is monetary aid or a direct pecuniary grant and section 51(iii) of the Constitution enables the Commonwealth to make bounties. Section 51(iii) of the Constitution provides.

The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth.

The relevant issue whether grants under the Grants Bill will qualify as bounties under section 51(iii) will rest on the need for grants to be uniform throughout Australia. The exclusion of metropolitan areas from grants under clause 10 may preclude the Grants Bill being based on the bounties power. In Elliott v The Commonwealth Latham CJ emphasised the requirement for uniformity in section 51(iii) as follows:

There must not be, in the case of bounties, any variation based upon locality within the Commonwealth. In considering this provision it is not necessary to inquire whether there is absence of uniformity as 'between States or parts of States'. Any absence of 'geographical uniformity' (which includes the presence of any discrimination or preference based on locality) would constitute a breach of section 51(iii). The marked difference in language between the words of this section and those used in section 99 cannot, in my opinion, be ignored. In the case of section 51(iii) it is sufficient, in order to invalidate legislation, to find any differentiation based upon locality in the widest sense. In the case of section 99 it is necessary to show that a preference is given to one State or part of a State over another State or a part of a State.(18)

Thus clause 10 would be invalid if reliance is placed on section 51(iii) of the Constitution to validate the Grants Bill .

Is the Grants Bill based on the taxation power in section 51(ii) of the Constitution?

As indicated above, the Minister in his Second Reading speech emphasised the fact that there was legal difficulty in using the tax system to implement the DAFGS and hence on the face of it the Grants Bill is not dependent upon the taxation power in section 51(ii) of the Constitution.

Section 51(ii) of the Constitution provides -

The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

        Taxation; but so as not to discriminate between States or parts of States:

The objective of the DAFGS and the DFRS is to reduce the transport costs for business as was clearly indicated in the Second Reading Speech cited above. The grant reduces the cost to the end user as much as the rebate does, and in the entire scheme for the collection of revenue from excise on fuel, the grant as well as the rebate is an adjustment of the excise. The Grants Bill by itself does not impose taxation. However, it needs to be examined whether the Grants Bill has measures to make rebates of the diesel fuel excise (although labelled 'grants') which are similar and have the same objectives as the Rebates Bill to achieve reductions in the price paid for diesel fuel for certain users.

A connection between the 'grant' and the 'rebate' may appear to be established by the provisions of clause 13 and subclause 10(2) which state that fuel grants are not payable for use of diesel fuel or alternative fuel if a rebate is payable in respect of the fuel under section 164 of the Customs Act 1901 or section 78A of the Excise Act 1901. However, considering that the diesel fuel rebate is payable for off public road use and the diesel fuel grant will be payable for public road use it is unclear whether there could be an overlap of legitimate claims in respect of the rebate as well as the grant.

A connection between the grant and the fuel excise would also appear to be established by the provisions of subclause 11(2) which state that the amount of the grant cannot exceed the amount payable for the diesel fuel or alternative fuel. Paragraph 11(2)(b) provides that the amount per litre of the grant will be specified in the regulations in respect of each type of fuel. Based on the objectives of the ANTS package and the costings provided, it is likely that the regulations will specify a figure of grant per litre which does not exceed the excise payable on that fuel.

The question whether the Grants Bill is a stand alone Bill or whether with the Rebates Bill it is part of a scheme to reduce the excise of diesel fuel certain users is a matter of interpretation. This will depend on the approach of the High Court to examining the existence of schemes in measures to be found in different pieces of legislation. Will that approach be based on the New Realism which began in the 1970s or on the basis of a more legalistic interpretation which has been the trend of High Court decisions in recent times?

According to Lane under the High Court's New Realism the:

'[N]ew interpretative method is to eschew a strict literal and/or legal inquiry into the effect of a challenged law, or into the nature of a transaction, or into the interpretation and application of a constitutional provision. Instead, the court seeks out the practical effect, or what is achieved in substance or 'in reality'. (19)

The argument that the DFRS and the DAFGS is in effect one scheme is supported by the provisions of Clause 4 of the Grants Bill which envisages the creation of the Energy Grants (Credit) Scheme to start on 1 July 2002 or earlier to replace the DFRS and the DAFGS.

Subclause 4(2) states:

The purpose of the energy Grants (Credits) Scheme will be to provide active encouragement for the move to the use of cleaner fuels by measures additional to those under this Act, while at the same time maintaining entitlements that are equivalent to those under this Act and the Diesel Fuel Rebate Scheme, including for use of alternative fuels.

The writer takes the view that given the provisions in the Grants Bill which establish a connection between the DFRS and the DAFGS and the extrinsic material such as the ANTS package and the Second Reading Speech cited above which are admissible under section 15AB of the Acts Interpretation Act 1901 for interpretative purposes, there is adequate evidence to conclude that the DAFGS is merely an extension of the DFRS to reduce to certain consumers the cost of fuel.

In consequence it may be argued that the Grants Bill must be based on taxation power in section 51(ii) of the Constitution.

If the Grants Bill is based on the taxation power and the grants adjust the customs and excise duty payable on diesel fuel, the question arises whether there has been a breach of the non-discriminatory provisions in section 51(ii). Clause 6 of the Grants Bill does not classify any part of Tasmania as a 'metropolitan area'. In consequence, an adjustment to the customs duty or excise duty is available to a vehicle 4.5 tonnes or more but less than 20 tonnes, using diesel or alternative fuel for transporting passengers or goods on public roads throughout Tasmania. This discriminates against New South Wales, Victoria. Queensland, South Australia and Western Australia in that a similar adjustment of duty will not be available for operations within metropolitan areas in those States as defined in clause 6 of the Grants Bill.

A parallel may be drawn with the varying allowance of zone rebates for income tax purposes based on classification of regions. In Commissioner of Taxation v Clyne(20) the provisions of the zonal rebate scheme in section 79A of the Income Tax Assessment Act 1936 were challenged as being outside the constitutional powers under section 51(ii) of the Constitution. In the event, the High Court did not find it necessary to decide in that case whether or not section 79A was constitutional. However certain observations of Dixon CJ, which had the support of the majority of the High Court, may be regarded as expressing the view that the zone allowance provisions do conflict with the Constitution.

Thus if the Grants Bill and the Rebates Bill are considered as a legislative scheme for the adjustment of customs duty and excise duty on diesel and alternative fuel the provisions of clause 10 of the Grants Bill may breach the non-discriminatory provisions of section 51(ii) of the Constitution.

On the other hand if the Grants Bill is considered as a stand alone Bill and based on the trade and commerce power in section 51(i) of the Constitution clause 10 of the Grants Bill may be in breach of section 99 of the Constitution.

In either event, there is the possible consequence that grants under the Grants Bill may not be available for vehicles of 4.5 tonnes or more, but less than 20 tonnes if clause 10 which is the offending provision is severable from the rest of the Bill.

Endnotes

  1. Tax Reform: not a new tax; a new tax system: The Howard Government's Plan for a New Tax System (ANTS); circulated by the Hon. Peter Costello MP, Treasurer of the Commonwealth of Australia (AGPS) August 1998.

  2. This Bills Digest and its companion Bills Digest No. 20 1999-2000 on the Rebates Bill are being distributed for use as information material by Senators and Members in their constituencies.

  3. Ibid., p. 23.

  4. Ibid., p. 86.

  5. Commonwealth Environmental Powers: Report of the Senate Environment, Communications, Information Technology and the Arts References Committee; (May 1999).

  6. (1976) 136 CLR 1 at p. 22.

  7. Commonwealth Environmental Powers: Report of the Senate Environment, Communications, Information Technology and the Arts References Committee; paragraph 2.13; pp. 6-7.

  8. Ibid., paragraph 2.14; p.7.

  9. House of Representatives Hansard; 22 June 1999; p. 7049.

  10. (1940) 63 CLR 338 at page 349

  11. (1969) 119 CLR 390

  12. Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29; pp. 81-83.

  13. Griffin v Constantine (1954) 91 CLR 136.

  14. Radio Corp Pty Ltd v Commonwealth (1938) 59 CLR 170.

  15. Lane's Commentary on The Australian Constitution (Second Edition) (1997); pp. 154 to 155.

  16. (1954) 92 CLR 565, pp. 597-598.

  17. (1936) 54 CLR 657 at p. 668.

  18. Ibid., p. 673.

  19. Lane's Commentary on The Australian Constitution (Second Edition) (1997); p. 25.

  20. (1957-58) 100 CLR 246.

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Bernard Pulle and Richard Webb
18 August 1999
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ISSN 1328-8091
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