South Australia v Commonwealth [1992] HCA 7

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. South Australia v Commonwealth [1992] HCA 7

ORDER Answer the questions reserved as follows: 1.

(a) Prior to 19 October 1989 was SASFIT; and

(b) is SASFIT now

the State of South Australia within the meaning of s. 114 of the Constitution? Answer:

(a) Not necessary to answer.

(b) Not necessary to answer.

2.

(a) Prior to 19 October 1989 was property held on account of the South Australian Superannuation Fund; and

(b) is property now held on account of the Fund

property of any kind belonging to a State within the meaning of s. 114 of the Constitution? Answer:

(a) Not necessary to answer.

(b) Not necessary to answer.

3. Is SASFIT exempt from paying income tax on income received into or on account of the Fund or net capital gains made by the Fund for the period 1 July 1988 to 19 October 1989 by reason of s. 114 of the Constitution and s. 271 of the Income Tax Assessment Act 1936 Cth? Answer: As to income tax on interest derived from money lent — no. As to income tax on net capital gains — yes. 4. Is SASFIT exempt from paying income tax on income received into or on account of the Fund or net capital gains made by the Fund after 19 October 1989 by reason of s. 114 of the Constitution and s. 271 of the Income Tax Assessment Act 1936 Cth? Answer: As to income tax on interest derived from money lent — no. As to income tax on net capital gains — yes.

Cur. adv. vult.

The following written judgments were delivered:—

1992, Feb. 25 Mason C.J., Deane, Toohey and Gaudron JJ.

The plaintiffs, the State of South Australia and the South Australian Superannuation Fund Investment Trust ("SASFIT"), commenced an action in this Court seeking declarations (a) that SASFIT is "a State" for the purposes of s. 114 of the Constitution; (b) that the plaintiffs are not liable to pay income tax on income received into or on account of the South Australian Superannuation Fund ("the Fund") or on net capital gains made by the Fund for the period from 1 July 1988 to 19 October 1989 by reason of s. 114 of the Constitution and s. 271 of the Income Tax Assessment Act 1936 Cth ("the Act"); and (c) that the plaintiffs are not liable to pay income tax in respect of income received into or on account of the Fund and net capital gains made by the Fund after 19 October 1989.