taxation taxation: validity of Appellate Tribunal for Commonwealth and State Income Tax purposes: appointment of one person to constitute Court of Review for objections against all assessments Federal and State: separate court for each state with same judge and state and federal jurisdiction: appeal : tenure of judge: expenses of court
constitution s 73
I am in receipt of your letter of 3 September 1935, requesting my views on the proposals of the Chairman of the Royal Commission on Uniform Income Tax Legislation for the constitution of an appellate tribunal for Commonwealth and State income tax purposes.
The proposals now outlined by the Chairman differ in some respects from the original recommendation of the Royal Commission on this matter and some objections which existed in respect of that recommendation have been avoided in the present proposals.
Those proposals are:
- That the Commonwealth and the States should agree upon the appointment of one person to constitute a court of review for the decision of objections against all assessments, Federal and State.
- That each State should create such a court, and appoint this person as judge of the court, with power in any case to call in expert assistance.
- That the Commonwealth Parliament should invest each of these courts with federal jurisdiction.
- That in respect of federal assessments an appeal should lie from the court of Review to the High Court upon questions of law only, except in cases where the amount involved is less than £…, and in those cases only by leave of the court of review or of the High Court.
- That in respect of State assessments an appeal should lie from the court of review to the Supreme Court upon questions of law only, except in cases where the amount involved is less than £…, and in those cases only by leave of the court of review or of the Supreme Court. (The right of appeal from the Supreme Court to the High Court would be governed by the existing law).
Although the avowed object of the proposals is the establishment of one appellate Tribunal they really involve the establishment of six courts, one in each State, to adjudicate on State matters.
The States cannot jointly establish one court but each State must act independently in constituting a court to deal with matters arising in that State.
Each such court would be required to act in two jurisdictions, namely, State and Federal.
The only connexion between these six courts would lie in the fact that all the State courts in both their jurisdictions would be constituted by the same person. The courts would, however, derive their authority from seven different sources.
It would be highly desirable that the legislation of all States for the constitution of the proposed courts should be uniform, particularly as to the tenure of office of the judge and as to the limits of jurisdiction of the court.
There is the possibility that in some States the term of office of the Judge might be prematurely terminated by executive authority for reasons that were not considered adequate by the remaining States.
As the sole merit of the scheme appears to lie in the fact that all appeals, both Commonwealth and State, shall be heard by the same judge, all available steps should be taken to ensure that the term of office of the judge shall be the same in all States.
It is assumed that a fair allocation as between the seven participating governments of the expenses of the courts would be made.
Uniformity cannot be attained in the matter of appeals from the courts in their Commonwealth and State jurisdictions.
While appeals would lie from the courts in their federal jurisdiction direct to the High Court, appeals from the courts in their State jurisdiction must, by reason of the provisions of section 73 of the Constitution, be to State courts, i.e. the Supreme Courts of the States whence if necessary appeal could go to the High Court.
I assume that the question whether one judge could cover all the work to be performed has been carefully examined.
Subject to the foregoing, I see no objection to the proposals.
[Vol. 28, p. 407]