The Secretary to the Treasury has forwarded me the following memorandum
for advice:

Section 23(2) of the War Time Profits Assessment Act reads as follows:

When any alteration in an assessment has the effect of reducing the taxpayer’s liability, the Commissioner shall refund the taxpayer any tax overpaid.

2. Section 60 of the Land Tax Assessment Act reads:

If within three years after any Land Tax has been paid, it is discovered that too much in amount has been paid, whether by reason of duplicate taxation or otherwise, the Commissioner, upon being satisfied thereof, shall order the excess to be returned to the taxpayer entitled thereto.

3. It is thought that the authority contained in the above provisions for making refunds is very similar in nature to the authority contained in the Customs Act which appropriates the moneys required for making refunds and drawbacks. In connection with these latter refunds, I forward for your information copy of an opinion furnished by Mr. Attorney-General Deakin under date 10th July, 1901.⁽¹⁾
4. In this connection I also forward for your information copy of an opinion given by Mr. Attorney-General Deakin on the 25th February, 1902,⁽²⁾ on the question of special appropriations under the Constitution, and would invite special attention to the following words used by Mr. Deakin:

No particular form of words is, however, necessary to constitute a Special Appropriation. It is enough that the legislature should clearly indicate its intention that expenditure for the specified purpose is authorised.

Enclosed also is an opinion given by the Attorney-General on 3rd November, 1902,⁽³⁾ in regard to refunds of deposits of duty lodged under section 167 of the Customs Act.

5. Will you be good enough to advise whether the War Time Profits Assessment Act and the Land Tax Assessment Act contain sufficient authority for making refunds of revenue without requiring a vote of Parliament. As the matter is urgent I shall be glad if your advising could be furnished at the earliest possible moment.

Section 83 of the Constitution provides that no money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

The sections of the Taxation Acts above quoted authorise the Commissioner (in the first instance) to refund tax overpaid and (in the second instance) to order the return of tax overpaid.

In neither case are words used which can be construed as an appropriation or as an authority to draw money from the Treasury.

I am therefore of opinion that there is not in the cases quoted an ‘appropriation made by law’.

[Vol. 22, p. 95]

(1) Opinion not found.

(2) Opinion No. 48.

(3) Opinion No. 105.