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
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