Roy Morgan Research Pty Ltd v Commissioner of Taxation [2011] HCA 35

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

ROY MORGAN RESEARCH PTY LTD APPELLANT

AND

COMMISSIONER OF TAXATION & ANOR RESPONDENTS

Roy Morgan Research Pty Ltd v Commissioner of Taxation [2011] HCA 35

28 September 2011

M177/2010

ORDER

1. Appeal dismissed.

2. The appellant pay the costs of the first respondent.

On appeal from the Federal Court of Australia

Representation

J J Batrouney SC and K L Walker with G A Hill for the appellant (instructed by Hall & Wilcox)

S P Donoghue for the first respondent (instructed by Australian Government Solicitor)

S J Gageler SC, Solicitor-General of the Commonwealth with S P Donoghue and D F O'Leary for the second respondent (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Roy Morgan Research Pty Ltd v Commissioner of Taxation

Constitutional law (Cth) – Taxation – s 51(ii) – Superannuation guarantee charge imposed upon employers who fail to provide to employees a prescribed level of superannuation – Charge debt due to Commonwealth and paid into Consolidated Revenue Fund for benefit of employees – Whether law imposing charge not a law with respect to taxation because charge is not imposed for "public purposes", and because it confers a "private and direct benefit" on employees of those employers who pay charge.

Words and phrases – "charge", "compulsory exaction", "private and direct benefit", "public purposes".

Constitution, s 51(ii).

Superannuation Guarantee (Administration) Act 1992 (Cth), ss 16, 17.

Superannuation Guarantee Charge Act 1992 (Cth), ss 5, 6.

1. FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. In Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation[1], the Full Court of the Federal Court (Keane CJ, Sundberg and Kenny JJ), on an "appeal" under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), upheld the validity of the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the Administration Act") and the Superannuation Guarantee Charge Act 1992 (Cth) ("the Charge Act"). 2. By special leave, the appellant appeals to this Court against that decision. The appellant submits, inter alia, that the only available head of power to support the legislation is s 51(ii) of the Constitution, and that the superannuation guarantee charge ("the Charge") provided for in the legislation is not a tax because it is not imposed for "public purposes". For the reasons which follow, the constitutional challenge to the Administration Act and the Charge Act in this Court fails and the appeal should be dismissed.