Clarke v Commissioner of Taxation [2009] HCA 33

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, KIEFEL AND BELL JJ

RALPH DESMOND CLARKE APPELLANT

AND

COMMISSIONER OF TAXATION & ANOR RESPONDENTS

Clarke v Commissioner of Taxation [2009] HCA 33

2 September 2009

A35/2008

ORDER

1. Appeal allowed.

2. Set aside order 1 of the orders of the Full Court of the Federal Court of Australia made on 13 June 2008, and in lieu thereof, order that question 3 of the questions referred to the Full Court by the Administrative Appeals Tribunal on 6 July 2007 be answered as follows:

Question 3: Are the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth) ("the Imposition Act") and/or the Assessment Act [Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth)] invalid in their application to the applicant:

a) on the ground that they so discriminate against the State of South Australia or so place a particular disability or burden upon the operations and activities of the State of South Australia, as to be beyond the legislative power of the Commonwealth; or

b) on the ground that the Imposition Act imposes a tax on property belonging to the State of South Australia contrary to section 114 of the Commonwealth Constitution?

Answer: As to question 3(a), the Imposition Act and the Assessment Act are invalid insofar as they purport to create the

liability of the appellant to superannuation contributions surcharge in respect of his membership of the Parliamentary Superannuation Scheme, the State Superannuation Benefit Scheme and the Southern State Superannuation Scheme.

3. First respondent to pay the costs of the appellant.

On appeal from the Federal Court of Australia

Representation

P A Heywood-Smith QC with A L Tokley for the appellant (instructed by Johnston Withers)