Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34

High Court of Australia Barwick C.J. Stephen, Mason, Murphy and Aickin JJ. Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1979, Aug. 8 Barwick C.J.

I have had the advantage in this appeal of reading the reasons for judgment prepared by my brother Mason. Consequently I have no need to refer to the relevant statutory provisions in any detail or to the submissions made by the parties.

In my opinion, the Superannuation Fund Investment Trust, incorporated by the Superannuation Act 1976 Cth ("the Act"), is a manifestation of the Crown in right of the Commonwealth; and the fund of which the Trust has the management is wholly the property of the Crown in right of the Commonwealth. Further, property acquired by the Trust for the purposes of the fund becomes on its acquisition the property of the Crown in right of the Commonwealth. I am content to rest these conclusions upon the analysis of the provisions of the Act which my brother Mason has made in his reasons for judgment.

I am unable to agree, however, that the Parliament by this Act has subjected the Crown in right of the Commonwealth and its property to taxation by the States, except in relation to income tax upon the income of the fund which income is, in my opinion, quite clearly the property of the Crown in right of the Commonwealth.

Quite apart from the effect of the federal nature of the Constitution, a legislative intention to subject the Crown and its property to taxation must be found in the legislation in express words or by necessary implication. That is the established position at common law. Bearing in mind our federal structure, a legislative intent on the part of the Parliament to subject the Crown in right of the Commonwealth to taxation by a legislature of a State must, in my opinion, be unambiguously discoverable in the language of the Parliament, considered in the light of the subject matter of its legislation and the evident policy it discloses. This is so, in my opinion, quite apart from the presence and operation of of s. 114 of the Constitution.