Australian Tramway Employes Association Claimants; and Prahran and Malvern Tramway Trust [1913] HCA 53

H.C, or A. 1914. Vw

WarTER- HOUSE v Deputy FepeRaL Commiis-

SIONER OF Lanp Tax, A.

Isaacs J.

HIGH COURT [1914.

legislature has excluded all idea of acting upon any power but that of enacting a land tax—we are, I think, restricted to the single enquiry whether sec. 36 is really incidental to such a tax. In my opinion it is not, because the fiction it creates, namely, that the given person is to be deemed owner of certain land not in his name, is accompanied by an acknowledgment on the very face of the section itself, that the person in question has no interest whatever in the land.

The provision therefore shows ex facie that it isnot and cannot possibly be incidental to a land tax, because the idea of a person admittedly unconnected with the land in any way whatever being required personally to pay a tax upon it already imposed upon the owner, is ex vi termini foreign to the very idea of a land tax.

For this reason I am of opinion that the section is invalid, but that its invalidity does not infect any other enactment, and does not violate sec. 55 of the Constitution.

The judgment of Gavan Durry and Ricu JJ. was read by

Gavan Durry J. Sec. 36 (2) of the Land Taa: Assessment Act 1910, when read with the other sections of that Act and with the incorporating Land Tax Act 1910, was, in our opinion, designed to impose a tax on persons having no interest in the land in respect of which the tax is assessed. How should such an enact- ment be described? Is it an attempt to impose a tax dealing with land, or is it an attempt to impose a tax other than a land tax so as to bring the Land Tax Act within the mischief of the second part of sec. 55 of the Constitution as dealing with more than one subject of taxation? The answer to this question may be found in a case already decided by this Court. All the Judges who took part in the decision in Osborne v. The Com- monwealth (1) expressed the opinion that the Land Taw Act 1910 incorporating the Land Tax Assessment Act 1910 does not deal with any subject of taxation other than Jand. It cannot, there- fore, be said that those Acts are, or any section of them is, bad under the second part of sec. 55 of the Constitution as dealing with more than one subject of taxation. The result is that the