Sheppard v Commissioner of Taxation [2002] ACTSC 113 (11 November 2002)

Last Updated: 11 November 2002

JASON EDWIN SHEPPARD v COMMISSIONER OF TAXATION [2002]

ACTSC 113 (11 November 2002)

CATCHWORDS

APPEAL - appeal from Magistrates Court - contravention of s 8C (1)(a) Taxation Administration Act 1953 - failing to file a tax return - penalty and conviction imposed - appeal on the validity of penalty and conviction - issues - whether Constitution of Australia is a legitimate source of power for the relevant legislation - it is - whether Taxation Administration Act 1953 is binding on the appellant - it is - appeal dismissed - convictions and penalties imposed confirmed.

Taxation Administration Act 1953 (Cth)

Judiciary Act 1903 (Cth)

Commonwealth of Australia Constitution Act 1900 (UK)

Statute of Westminster 1931

Australia Act 1986 (Cth)

Income Tax Assessment Act 1936 (Cth)

Taxation Administration Act 1953 (Cth)

Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56;

[1999] HCA 56; (1999) 166 ALR 302

Joosse v Australian Securities and Investment Commission [1998] HCA 77;

[1998] HCA 78; (1998) 73 ALJR 232

McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27; (2000) 171 ALR 335

Greer v Deputy Commissioner of Taxation (High Court of Australia, unreported,

26 April 2002)

Deputy Commissioner of Taxation v Levick [1999] FCA 1580; (1999) 168 ALR 383

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 89 of 2001

Judge: Higgins J

Supreme Court of the ACT

Date: 11 November 2002

IN THE SUPREME COURT OF THE )

) No. SCA 89 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: JASON EDWIN SHEPPARD

Appellant

AND: COMMISSIONER OF TAXATION

Respondent

ORDER

Judge: Higgins J

Date: 11 November 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed. The convictions and penalties imposed are confirmed.

2. The parties will be heard as to costs.

1. The appellant, Jason Edwin Sheppard, was, on 2 November 2001, convicted by Magistrate Fryar in the ACT Magistrates Court on two charges of contravening s 8C(1)(a) of the Taxation Administration Act 1953 (Cth) by failing to file a tax return (1) for the financial year ending 30 June 1998 and (2) for the year ending 30 June 1999.

2. There was no denial of the fact of failure to file the returns with the proper authority, the Commissioner of Taxation. The respondent is the informant in those matters.

3. The appellant challenged the apparent obligation to file returns by denying that the Constitution, being an Act of the United Kingdom Parliament, is a source of power for the relevant legislation and hence for the empowerment of the Commissioner or his delegate to demand returns.

4. It also follows from this argument, if accepted, that the Courts of this Territory would be denied the power to impose the fines ordered by the learned Magistrate and I would have no power to entertain this appeal.

5. But the appellant goes further. He asserts that all concerned in his prosecution and conviction are guilty of "act's of Treason (sic)". That allegation is plainly nonsensical.

6. Notice was given to all Attorneys-General, pursuant to s 78B of the Judiciary Act 1903 (Cth). None of those officers felt, it seems, threatened by the prospect of the Constitution and all Acts and things done thereunder being declared invalid. None appeared.

7. The contention that the Constitution was not legally binding was put before me in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (Reference on appeal [1999] HCA 56 (7 October 1999)). I rejected it, following a decision of Hayne J in Joosse v Australian Securities and Investment Commission [1998] HCA 77; 73 ALJR 232 (High Court of Australia).

8. In Helljay the appellant in that case sought leave from Hayne J in the High Court of Australia to have the matter removed into that Court (see [1999] HCA 56 (7 October 1999).

9. That attack was based on a suggestion that the continued application of Imperial (that is, United Kingdom) law in Australia, including the Commonwealth of Australia Constitution Act 1900 (UK), was abrogated by the ratification of the Treaty of Versailles in 1919 and the Instrument of Accession to the Covenant of the League of Nations.

10. That, it was submitted, marked the abrogation of sovereign power, insofar as the United Kingdom could possess it, leaving it vested in the Australian people but lacking an instrument thereafter accepted by them expressing that sovereignty.

11. Hayne J rejected the contention that such a proposition was arguable. Legislative authority was vested in the Commonwealth Parliament by the acknowledgment of the United Kingdom Parliament of the terms of the Constitution as binding under United Kingdom law. Thus the Statute of Westminster 1931 (adopted in 1942) and the Australia Act 1986 (Cth) have had the effect of divesting the United Kingdom Parliament of any vestigial sovereign rights in or concerning Australia, if, indeed, it retained any after the enactment of the Constitution Act otherwise than as ceded by express Australian legislation (if any).

12. Gummow J in McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27 (5 May 2000); [2000] HCA 27; 171 ALR 335 was faced with a similar contention. He rejected it. As had McHugh J in Greer v Deputy Commissioner of Taxation (High Court of Australia unreported, 26 April 2000).

13. It has also been argued that the powers of the Governors-General to assent to the Income Tax Assessment Act 1936 (Cth) (predecessor to the present Taxation Administration Act 1953 (Cth)) had not been validly conferred. That argument was rejected in Deputy Commissioner of Taxation v Levick [1999] FCA 1580; 168 ALR 383.

14. The appellant places some significance on a contention that the States and, collectively, the Commonwealth of Australia were referred to as "Colonies" in the United Kingdom legislation creating the Commonwealth of Australia.

15. This is said to have changed by reason of the title "Dominion" being used instead to refer to the self-governing colonies recognized as separate nation states as from 1911 and, also, by reason of a decision of the Imperial War Conference 1917 to confer independent sovereign status on those Dominions, by reason of their contribution to the war effort.

16. Why that should deprive the Constitution of its force and why the Statute of Westminster did not give effect to that resolution, if that was necessary, is not explained. It is a valid construction of all the British enactments and the decisions referred to that total sovereignty was gradually conceded by the United Kingdom as having been transferred to the Commonwealth Parliament and people as well as to the State legislatures. It did not need the sudden total transfer as occurred with Hong Kong. The appellant's submission to that effect is rejected.

17. The argument so advanced is nonsense in constitutional terms. It confuses the transfer of sovereignty politically with the statutory instruments which evidence that transfer. It assumes, wrongly, that a transfer of sovereignty repeals all or some previous laws. It does not. It simply lessens to the point of removal the power of the United Kingdom Parliament to make laws for or in relation to Australia.

18. In any event, I am bound by the decisions of the High Court I have referred to and those referred to, in turn, in those decisions to dismiss this Appeal. It is dismissed accordingly. The convictions and penalties imposed are confirmed.

19. I will hear the parties as to costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 11 November 2002

Counsel for the appellant: Appellant in person

Counsel for the respondent: Mr J White

Solicitor for the respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 25 June 2002

Date of judgment: 11 November 2002