Australian & Overseas Telecommunications Corporation Ltd v Commissioner for Land Tax [1993] QCA 21 (1993) 114 ALR 262; [1994] 2 Qd R 350

THE COURT OF APPEAL [1993] QCA 021 SUPREME COURT OF QUEENSLAND Appeal No. 153 of 1992 Brisbane Before The President Mr Justice McPherson Mr Justice Pincus [A.O.T.C. v. Commissioner for Land Tax] BETWEEN: AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS CORPORATION LIMITED Appellant - and - COMMISSIONER FOR LAND TAX Respondent REASONS FOR JUDGMENT BY THE PRESIDENT AND McPHERSON JA. This is an appeal by the Australian and Overseas Telecommunications Corporation from a judgment delivered in the Trial Division on 2 July 1992 refusing the appellant's application for the following declarations against the Commissioner of Land Tax: "(i) a declaration that, in respect of the financial year commencing 1 July 1989, the land in Queensland owned by the Australian and Overseas Telecommunications Corporation was exempt from taxation under s.13(1)(i) of the Land Tax Act 1915. (ii) a declaration that no land tax in respect of the financial years commencing 1 July 1989 and 1 July 1990 has been validly levied upon the Australian and Overseas Telecommunications Corporation in accordance with s.10(1) of the Land Tax Act 1915. (iii) a declaration that the Australian and Overseas Telecommunications Corporation is not liable to taxation under the Land Tax Act 1915 in respect of -- 1 of 30 -- 2 the financial years commencing 1 July 1989 and 1 July 1990." It is not in dispute that the appellant was exempt from land tax under the Land Tax Act 1915 (Queensland) until s.59(1) of the Australian Telecommunications Corporation Act 1989 (Commonwealth) came into force on 1 July 1989. That sub-section provided that: "Telecom is subject to taxation under the laws of the Commonwealth and the States and Territories." At that time, sub-s.13(1) of the Land Tax Act 1915 (Queensland) provided: "The following lands shall be exempt from taxation under this Act, namely - (i) all land owned by the Commonwealth of Australia or the State, or by a local or other public authority; ... ." Again, it is accepted that, while sub-s.13(1) of the Land Tax Act retained that form, the appellant continued to be exempt from Queensland land tax notwithstanding sub- s.59(1) of the Australian Telecommunications Corporation Act. Sub-s.13(1)(i) was repealed on 21 November 1991 by sub- s.10(1) of the Land Tax Legislation Amendment Act 1991, which substituted a new sub-s.13(1)(i) in the following terms : "The following land shall be exempt from taxation under this Act, namely - (i) land owned by the Commonwealth, the State or a local or public authority unless the authority is subject to State taxation under an Act of the Commonwealth or a State;" -- 2 of 30 -- 3 The appellant accepts that, from that point on, it has no exemption from Queensland land tax. However, by sub-s.2(2) of the Land Tax Legislation Amendment Act 1991, the new sub- s.13(1) was made retrospective and is to be taken to have commenced on 29 June, 1989. The appellant disputes its liability to Queensland land tax under the Land Tax Act for the financial years 1 July 1989 to 30 June 1990 and 1 July 1990 to 30 June 1991. The appellant filed land tax returns for those years, claiming to be exempt by reason of sub-s.13(1) of the Land Tax Act as it then stood. No notices of assessment were issued on or prior to 1 July 1991, but notices of assessments were served on 10 December 1991 after the Land Tax Legislation Amendment Act had been enacted. It was accepted before the primary judge that the combined effect of the enactment of sub-s.59(1) of the Australian Telecommunications Corporation Act and the retrospective amendment of sub-s.13(1) of the Land Tax Act was that the appellant was not exempt from taxation on and from 1 July 1989, but it was contended that, for other reasons, the appellant is not liable in respect of those periods. However, the appellant now asserts as an additional ground of appeal that the retrospective operation of sub-s.13(1) of the Land Tax Act was invalid and that sub-s.13(1) as inserted in 1991 can validly operate only prospectively. The basis of this additional submission is that the retrospective operation of sub-s.13(1) of the Land Tax Act was a discriminatory attempt to single out and subject -- 3 of 30 -- 4 Commonwealth authorities to a State tax and is therefore: (a) contrary to s.109 of the Constitution, the imposition of a discriminatory tax being inconsistent with the imposition of taxation permitted by s.59(1) of the Australian Telecommunications Corporation Act; (b) contrary to s.114 of the Commonwealth Constitution, the imposition of a discriminatory tax not being the subject of consent by the Commonwealth Parliament by s.59(1) of the Australian Telecommunications Corporation Act; and (c) contrary to an implied constitutional limitation prohibiting a State from discriminating against the Commonwealth and its instrumentalities. It is convenient to put these constitutional issues to one side for the moment and to consider the matter on the footing that it was dealt with below; that is, on the assumption that the new sub-s.13(1) was validly made retrospective. Sections 8(1), 10(1), 11(1), 12, 15, 16(1), 18(1) (2) and (3), 19, 20, 32, 32A, 34(1), 37 and 58(5) of the Land Tax Act 1915 provide (so far as presently material): "8. Land tax on unimproved value. (1) Subject to this Act, land tax shall be levied and paid upon the unimproved value of all lands within Queensland which are owned by taxpayers, and which are not exempt from taxation under this Act. ... 10. (1) Levy of land tax. Land tax shall be levied in and for the financial year beginning on the first day of July, one thousand nine hundred and fifteen, and each financial year thereafter. -- 4 of 30 -- 5 ... 11. Taxable value (1) Land tax shall be payable by every owner of land upon the taxable value of all the land owned by him, and not exempt from taxation under this Act. 12. Date of ownership for purposes of tax. Land tax shall be charged on land as owned at midnight on the thirtieth day of June immediately preceding the financial year in and for which the tax is levied. ... 15. Tax to be levied, etc. on assessments. Subject to this Act, land tax shall be charged, levied, collected, paid, and enforced upon assessments made under this Act. ... 16. (1) Taxpayer to furnish returns. For the purposes of the assessment and levy of land tax, every owner of land of the unimproved value of- ... must unless otherwise notified by the Commissioner, in each financial year, in the prescribed manner and within the prescribed time, furnish a return setting forth a full and complete statement of all lands owned by him at midnight on the thirtieth day of June then last past and of the unimproved value of every parcel thereof with such other particulars as are required by the Commissioner. ... 18. Assessments, assessment registers, and notice. ... (1) From the returns and valuations so made, if any, and from any other information in his possession, or from any one or more of those sources, and whether any return has been furnished or not, the Commissioner shall cause assessments to be made for the purpose of ascertaining the amount upon which land tax shall be levied. (2) Such assessments shall be entered in assessment- registers. (3) As soon as conveniently may be after a taxpayer's assessment is entered in the assessment-registrar, the Commissioner shall cause notice in writing of the assessment, in the form and containing the particulars prescribed, to be given to the taxpayer. -- 5 of 30 -- 6 ... 19. Assessment in case of default or unsatisfactory return. ... - If (a) Any taxpayer or person makes default in furnishing any return; or (b) The Commissioner has reason to believe that any person (though he may have furnished no return) is a taxpayer; or (c) The Commissioner is not satisfied with the return made by any taxpayer or person. the Commissioner may make an assessment of the amount on which, in his judgment, land tax ought to be levied, and the taxpayer or person shall be liable to land tax thereon, excepting so far as he establishes, on appeal, that the assessment is excessive. If such default is made in furnishing a return at the prescribed date or within any further time allowed by the Commissioner, there shall be added to the amount of the tax a sum equal to five per centum on the same; and if such default continues for a period of sixty days after the due date or such extended date (if any), there shall be added to the amount of the tax a sum equal to ten per centum on the same; and such addition to the tax in either of the aforesaid cases shall be deemed to be a part of the tax and be recoverable accordingly.: Provided that the Commissioner may in any particular case, for reasons which in his discretion he thinks sufficient, remit the additional tax or any part thereof. The power conferred upon the Commissioner by this section shall be in addition to any right conferred upon him by this Act to take proceedings for and recover any penalties for failing to make returns at the proper date, or for having made an incorrect return, or, in lieu of proceedings for any such penalty, to impose a fine upon the person so offending. 20. Alterations of assessments. .... (1) Where the Commissioner has assessed any person without making or obtaining any independent valuation, the Commissioner, so soon thereafter as is conveniently practicable, but not after the expiration of three years from the date of the assessment, if from valuations made or obtained by him, or other information in his possession he finds that the assessment ought to have been for a greater amount, may alter the assessment accordingly, as from -- 6 of 30 -- 7 the date when the assessment was made. (2) Where the Commissioner has assessed any person, either on any return sent in by him or in the absence of any return, and at any time thereafter finds that any land in respect of which that person was liable to pay land tax was not included in the assessment, or the value of improvements has been overstated, or the value of improvements has been wrongly claimed, or the unimproved value of any authority required to be stated has been understated, he may add to and alter the assessment accordingly, as from the date when the assessment was made. (3) In any such case the taxpayer shall, and notwithstanding that land tax may have been paid in respect of the land, be liable to pay an amount equal to twice the difference between any land tax that he has paid and the land tax which he ought to have paid if the assessment had been originally made as altered. If the Commissioner is satisfied that the taxpayer was not guilty of any wilful default or omission and has not done any act with intent to defraud the revenue, he may remit the whole or any part of such tax over and above the amount computed on the ordinary rate. The power conferred upon the Commissioner by this subsection shall be in addition to any right conferred upon him by this Act to take proceedings for and recover any penalties for evading or avoiding assessment or the payment of land tax or attempting to do so. (4) In addition to and without prejudice to the other powers in this section contained, the Commissioner may at any time make all such alterations in or additions to any assessment as the thinks necessary in order to insure its completeness and accuracy, notwithstanding that land tax may have been paid in respect of the land included in the assessment. (5) (a) If within 3 years after the date when any land tax for a particular year became payable it is discovered that too much in amount has been paid for that year by reason of duplicate taxation or arithmetic error on th part of a person employed under this Act, the Commissioner upon being satisfied thereof shall alter the assessment accordingly and order the excess to be returned to the taxpayer entitled thereto. (b) If within the time limited for appeal to the Land Court pursuant to this Act against the assessment by the Commissioner it is discovered that too much land tax has been paid for the year in respect of which the assessment was made by reason of circumstances other -- 7 of 30 -- 8 than those referred to in paragraph (a), the Commissioner upon being satisfied thereof shall alter the assessment accordingly and order the excess to be returned to the taxpayer entitled thereto. (c) If after the time limited for appeal to the Land Court pursuant to this Act against the assessment by the Commissioner but within 3 years after the date when the assessment was made it is discovered that too much land tax has been paid for the year in respect of which the assessment was made by reason of circumstances other than those referred to in paragraph (a), the Commissioner upon being satisfied thereof may in his absolute discretion alter the assessment accordingly and order the excess to be returned to the taxpayer entitled thereto. (d) Notwithstanding paragraphs (a), (b), and (c), where the Commissioner subsequently discovers that additional tax should be paid he shall have power to recover such additional tax. (6) Upon any alteration or addition to an assessment, the Commissioner shall amend the assessment-register accordingly: Provided that every alteration or addition which as the effect of imposing any fresh liability, or increasing any existing liability, shall be notified to the taxpayer affected, and, unless made with his consent, shall be subject to appeal. (7) For the purposes of this section the Commissioner may, inter alia - (a) Place on or remove from an assessment the name of any person, or the particulars or valuation of any land; or (b) Increase or reduce the assessed value of any land. 32. Date of payment of tax. ... Land tax shall be due and payable upon such date as the Commissioner notifies to the taxpayer in the notice of assessment served as prescribed. 32A. Extension of time for payment. ... The Commissioner may in any case grant such extension of time for payment or permit payment to be made by such instalments and within such time as he considers the circumstances warrant, and in such case the tax shall be due and payable accordingly. ... -- 8 of 30 -- 9 34. Recovery of tax. ... (1) Land tax shall be deemed when it becomes due or is payable to be a debt due to the Crown and payable to the Commissioner in the manner and at the place prescribed. ... 37. Tax to be a first charge on land. ... (1) Land tax shall until payment or the Commissioner certifies that he holds security for the payment of the tax be a first charge upon the land taxed in priority over all other encumbrances whatever other than land tax due to the Commonwealth, and notwithstanding any disposition of the land it shall continue to be liable in the hands of any purchaser or holder for the payment of the tax so long as it remains unpaid unless the Commissioner certifies that he holds security for the payment of the tax: Provided that no such charge shall be of effect as against a bona fide purchaser for value who at the time of purchase made inquiry of the Commissioner as prescribed, and was informed there was no liability. (1A) The Commissioner shall on application in writing of the purchaser of any land and on payment of the prescribed fee issue as soon thereafter as is conveniently practicable a certificate showing whether or not any land tax remains unpaid on the land described in the application and where land tax remains unpaid the amount thereof. (1B) The regulations may provide that the prescribed fee referred to in subsection (1A) of this section shall be paid by affixing to the application an adhesive duty stamp issued pursuant to "The Stamp Acts, 1894 to 1968." of an amount equal to the amount of the prescribed fee. (2) Where the Commissioner thinks it advisable to register the charge, he may lodge with the proper Registrar of Titles a certificate under his hand describing the land charged, and stating that there are arrears of land tax payable in respect thereof; and the Registrar shall register it in the register and as nearly as may be in the manner in which dealings with land are registered, and shall deal with and give effect to the certificate as if it were an instrument of charge or encumbrance duly executed. (3) The Commissioner may take security for the payment of land tax. (4) Any security taken pursuant to this section shall be taken in a manner and form approved by the Commissioner and may, subject to that approval, be by -- 9 of 30 -- 10 bank guarantee or cash deposit or by both those methods. (5) In this section "bank guarantee" means a guarantee by a body corporate authorized under a law of the Commonwealth relating to banking to carry on banking business in Australia. ... 58. ... (5) The validity of any procedure under this Act, or of any assessment or any register or book or any document purporting to be made under this Act or to be signed by the Commissioner, shall not be prejudiced or affected by reason of any irregularity or informality therein, or of the fact that any of the provisions of this Act have not been complied with. The omission to give any notice of assessment shall not invalidate the assessment." Various terms are defined by sub-section 3(1) to have the meanings respectively assigned to them unless the context otherwise requires, including the following:- "`Assessment' - An estimate of the value of any land liable to taxation under this Act as well as the amount of tax imposed thereon respectively: the term includes all matters comprised in any return required by or under this Act; ... `Land tax' - The land tax imposed as such by and assessed under this Act: ... ... `Tax payer' - Every person liable to pay land tax, ...; ..." In addition, by sections 19 and 20 of the Land Tax Act the Commissioner is given extensive powers to issue default assessments and to alter assessments in various circumstances, and the taxpayer is obliged to pay what is assessed, subject to rights of appeal. However, neither section is suggested to be directly material for present purposes. Further, by section 59 of the Land Tax Act, the -- 10 of 30 -- 11 Governor in Council may extend the time for doing various acts, although there is no suggestion that that power was exercised in this instance. The appellant's first point of objection concerned only the 1989-1990 taxation year. Shortly stated, its contention was that Telecom's exemption from Queensland land tax was not lost until 1 July 1989 whereas the point at which it fell to be determined whether or not Telecom's land was exempt was midnight on June 30. Although the Land Tax Act specifies the point of time at which ownership of land is to be determined for the purpose of the imposition of land tax, no express provision is made concerning the time when it is to be determined whether or not land is exempt from taxation. However, on closer analysis of the material sections, it becomes apparent that both land ownership and whether land is exempt from taxation are to be determined at the same point of time. The factors relevant to liability are all determined by reference to the circumstances which exist at the end of the year preceding the material financial year. The land ownership with which the Act is concerned is ownership of land which is not exempt from tax. This is confirmed by the circumstance that the material ownership is ownership by a taxpayer, who is defined as a person who is liable to pay tax; that is, whose land is not exempt. Such an approach also seems necessary for the practical administration of the Land Tax Act, which would otherwise involve arbitrary decisions concerning liability or -- 11 of 30 -- 12 exemption from liability based on whatever circumstances existed at the various points of time when assessments were made during a financial year, or constant adjustment of assessments to respond to changing circumstances. In any event, the appellant's submission that its land was exempt at the point at which ownership was required to be determined is erroneous. By sub-s.3(2) of the Acts Interpretation Act 1901 (Commonwealth), sub-s.59(1) of the Australian Telecommunications Corporation Act came into operation immediately on the expiration of the last day preceding 1 July 1989; ie. at midnight on 30 June, 1989, which was also the first instant of 1 July 1989: see Prowse v. McIntyre (1961) 111 CLR 264, 273, 274 per Kitto J. and 278 per Windeyer J. At that instant, land owned by the appellant was not exempt (assuming the retrospective operation of the new sub-s.13(1), as has been done for present purposes). The appellant's second point relates to both financial years, 1989-1990 and 1990-1991. It was submitted that, since land tax was not "levied" "in" either financial year as required by s.10 (see also s.12) of the Land Tax Act but only after both years had expired, the appellant did not become liable to pay tax in respect of those periods. Such provisions as sections 19, 20, 58(5) and 59 aside, the scheme of the Act is relevantly quite straightforward: returns by taxpayers, followed by assessments by the Commissioner, followed by service of notices of assessment including details of the due date for payment. It seems -- 12 of 30 -- 13 that it is this last step which completes the process of levying tax to which the Act refers. However, whatever is meant by "levying" in the Act, it at least includes the making of an assessment which is required to take place "in" the material financial year by sections 10 and 12. No step was taken by the respondent during the two years in question. It is not particularly surprising that a requirement with respect to the process of assessment in ordinary circumstances is imposed in sections 10 and 12 rather than later sections such as 18 and 19 or 20. Further, the requirement which sections 10 and 12 impose is qualified by sections 19 and 20, which expand the respondent's power and the period in which it may be exercised in defined circumstances thereby giving a more practical operation to the Act. However, except for the requirement that land tax be levied "in" the material financial year (ss.10(1)and 12(1)), the Queensland legislation is relevantly similar to the New South Wales legislation considered by the High Court in Tooth and Co. Ltd. v. Newcastle Developments Ltd. (1966) 116 CLR 167. In that case, it was held that liability for the tax is not dependent upon any action of the Commissioner but derives directly from the statute. At p.170, the Court said: "... neither the charge nor the imposition waits upon the issue of an assessment pursuant to s.39. "Assessment" in the context of the Act means no more than the ascertainment of the extent of a previously existing liability and the statutory provision (s.39) that land tax for each year shall be due and payable -- 13 of 30 -- 14 thirty days after service of the notice of assessment does not mean that the liability is postponed until this has been done (cf. Church of England Property Trust, Diocese of Sydney v. Metropolitan Mutual Permanent Building and Investment Association Ltd. 1 (1932) 47 CLR 369)." The attribution of a similar effect to the Queensland legislation means that the appellant's submission that it did not become liable cannot succeed. However, it remains necessary to consider whether the respondent's failure to comply with the statutory requirement that tax be levied "in" the relevant year had the result that a pre-existing liability ceased to exist or at least became unenforceable. The basis for such a contention lies in propositions that (a) land tax is not due and payable until a notice of assessment has been issued (s.32); (b) a valid notice of assessment can only be issued when an effective assessment has been made and (c), subject to sections 19 and 20, an assessment must be made "in" the financial year "in" which land tax is required to be levied by ss.10 and 12. It is the last step in this argument which merits further consideration. As is pointed out by Pincus JA. in his reasons for judgment, not every non-compliance with a statutory requirement necessarily leads to invalidity. As it is sometimes put, a provision may be directory, not mandatory. However, in the context of the Act, including those sections which provide exceptions to the requirement that land tax be levied "in" the material financial year, that requirement is properly to be construed as a time limitation and, unless it is qualified elsewhere, compliance seems essential. -- 14 of 30 -- 15 Before the primary judge the respondent successfully countered this difficulty by reliance on sub-s.58(5) of the Land Tax Act. The last sentence of sub-s.58(5) says that the omission to give any notice of assessment does not invalidate the assessment. The trial judge held that the omission to serve the notice of assessment within the period prescribed was a non-compliance with a provision of the Act which was deprived of legal consequence by sub-s.58(5). While that is plainly correct having regard to the concluding words of the subsection, and notices of assessment have now been served so that the prerequisite to the appellant's obligation under s.32 has been met provided that those notices are grounded upon effective assessments, the point remains that assessments were not made within the prescribed time. It remains to be considered whether this defect also is answered by sub-s.58(5). If given literal effect, the subsection is applicable: making the assessments out of time involved a non-compliance with one of the provisions of the Act. Established principles of statutory construction require that the subsection not be given an operation which would be repugnant to, and render nugatory, other substantive provisions of the Act: K & S Lake City Freighters Pty. Ltd. v. Gordon and Gotch Ltd. (1985) 157 CLR 309, 315; Ross v. R. (1979) 141 CLR 432, 440. However, the construction contended for by the respondent does not produce that result when full effect is given to the statutory context, including the provisions with respect to appeals in Part V: cf F.J. -- 15 of 30 -- 16 Bloemen Pty. Ltd. v. FCT (1981) 147 CLR 360. The main burden in support of the final argument, the constitutional point, was carried by counsel for the Commonwealth Attorney-General, who intervened. One of the grounds advanced was set out in paragraph 6 of the written outline of submissions by the Commonwealth Attorney-General in the following terms: "The 1991 Queensland Legislation discriminates against Commonwealth Public Authorities since no other legislation amending the Land Tax Act of 1915 by removing exemptions under section 13, or modifying them adversely to tax payers, has commenced earlier than the 29 June immediately preceding the date of assent." The theory that retrospective legislation is discriminatory because it is given a longer period of retrospectivity than any previous retrospective change to the relevant statutory provisions is unsupported by authority, has no obvious logical force and seems to add nothing to the other ground upon which reliance was placed. Essentially, that ground appeared to be that the retrospective removal of an exemption previously enjoyed by a Commonwealth public authority, and perhaps other public authorities including State public authorities, but not by the general public citizenry, amounted to singling out the public authority or public authorities in question and, by retrospectively removing a special privilege (in this case a tax exemption), subjecting them to a special burden. In Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR 192, Mason J. (as his Honour then was) said at p.217: -- 16 of 30 -- 17 "A law which deprives a State of a right, privilege or benefit not enjoyed by others, so as to place the State on an equal footing with others, is not a law which isolates the State from the general law". It was never demonstrated why a law which is not discriminatory if applied prospectively becomes discriminatory when given retrospective effect, at least in circumstances such as the present in which the retrospective operation extended back only to the point of time when Commonwealth legislation sanctioned the removal of the exemption which its agency had previously enjoyed. In our opinion, the point is without merit. The appeal should be dismissed and the appellant ordered to pay the taxed costs of the respondent. -- 17 of 30 -- 2 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 153 of 1992 Brisbane [A.O.T.C. v. Commissioner for Land Tax] BETWEEN: AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS CORPORATION LIMITED Appellant - and - COMMISSIONER FOR LAND TAX Respondent The President Mr Justice McPherson Mr Justice Pincus Judgment delivered 24/02/93 Reasons for judgment by the President and McPherson JA. jointly, Pincus JA. separately. All concurring as to the order. APPEAL DISMISSED. APPELLANT TO PAY TAXED COSTS OF RESPONDENT. CATCHWORDS: LAND TAX - EXEMPTION - Exemption lifted retrospectively from and including 29 June 1989 - whether applied to 1989/90 tax year - whether tax to be "charged on land as owned" at midnight on 30 June 1989 - whether land tax levy valid if made after tax year - effect of saving provision. CONSTITUTIONAL LAW - Effect of state laws on the Commonwealth - whether retrospective removal of exemption enjoyed by Commonwealth authority but not general public discriminatory. Counsel: Mr P. Lyons Q.C. with him Mr J. McKenna for -- 18 of 30 -- 3 the appellant Mr K. Dorney Q.C. with him Mr F. Redmond for the respondent -- 19 of 30 -- Mr D. Rose Q.C. with him Mr G. Aitken for the Commonwealth Attorney-General, intervening in support of the appellant Solicitors: Australian Government Solicitor for the appellant Crown Solicitor for the respondent Australian Government Solicitor intervening in support of the appellant Hearing Date(s): 26 & 27/11/92 -- 20 of 30 -- 2 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 153 of 1992 BETWEEN: AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS CORPORATION LIMITED (Applicant) Appellant AND: COMMISSIONER FOR LAND TAX (Respondent) Respondent JUDGMENT - PINCUS J.A. Delivered the Twenty-fourth day of February 1993 I have had the advantage of reading the reasons of Fitzgerald P. and McPherson J.A., the content of which is such as to enable my views to be rather briefly expressed. The first question raised by the appellant is whether the land, being subject to land tax from 1 July 1989, was so subject at midnight on 30 June 1989 - meaning, of course, 12 o'clock on the night of 30 June/1 July. On this question I am in respectful agreement with the conclusions drawn in my brothers' reasons, adverse to the appellant. The appellant next contends that no liability for land tax can arise unless the tax is "levied" during the relevant years. It is said that, as no assessment was made during the years ended 30 June 1990 and 30 June 1991, s.10(1) of the Land Tax Act 1915 was not complied with. That provision reads as follows: -- 21 of 30 -- 3 "Land tax shall be levied in and for the financial year beginning on the first day of July, one thousand nine hundred and fifteen, and each financial year thereafter". Counsel for the respondent Commissioner referred to the decision of the High Court in Tooth & Co. v. Newcastle Developments Limited (1966) 116 C.L.R. 167 as helping to solve the problem of the time at which liability arises under our Land Tax Act. The High Court case had to do with the construction of New South Wales land tax statutes which appear to me, in relevant respects, to be fairly comparable with the Queensland Act. The New South Wales legislation provided in substance that in respect of the taxable value of all land owned by a person at a defined point of time in any year, there should be charged, levied, collected and paid land tax for the period of 12 months immediately following that point at the rates set out in the Schedule to the Act. Further, land tax was to be paid upon the unimproved value of lands owned by taxpayers as owned at the point of time I have mentioned and was payable by the owner upon the taxable value - i.e. unimproved value - of all the land owned by him and not exempt. There was provision for returns by owners and the Commissioner was required from the returns and other information in his possession, or from any one or both of those sources, to cause an assessment to be made of the taxable value of the land owned by any taxpayer and the land tax payable thereon. The statute provided that -- 22 of 30 -- 4 the tax was due and payable 30 days after service of a notice of assessment and deemed it, when it became due and payable, to be a debt due to Her Majesty. There was provision making the tax until payment a first charge upon the land taxed. The relevant sections are ss.7, 8, 9, 12, 14, 15, 39, 42 and 47 of the Land Tax Management Act (N.S.W.) - Act No. 26, 1956. Although examination of the precise terms of the statute shows that there are some differences, the general scheme of our Act is the same: see ss.8, 10(1), 11, 12, 15, 16, 18, 32, 34(1) and 37 of the Land Tax Act 1915 (Q.). The High Court held that under the New South Wales legislation the tax was charged and imposed on the land as owned at the point of time specified and "neither the charge nor the imposition waits upon the issue of an assessment ...". Their Honours went on: "'Assessment' in the context of the Act means no more than the ascertainment of the extent of a previously existing liability and the statutory provision (s.39) that land tax for each year shall be due and payable thirty days after service of the notice of assessment does not mean that the liability is postponed until this has been done ..." (170). So here: the sums which are made payable by the Queensland Act, under the relevant sections, are moneys the liability in respect of which arises by virtue of the Act itself, not on assessment; I refer in particular to: Section 8(1): "Subject to this Act, land tax shall be levied and paid upon the -- 23 of 30 -- 5 unimproved value of all lands within Queensland which are owned by taxpayers, and which are not exempt from taxation under this Act". Section 11(1): "Land tax shall be payable by every owner of land upon the taxable value of all the land owned by him, and not exempt from taxation under this Act". The notion of a liability existing but not yet ascertained, nor immediately payable, which underlay the decision in the Tooth & Co. case, has importance in construing s.10(1) on which the appellant relies. In the view I take of the matter, s.10(1) is not a provision which in itself imposes any liability; that is done by ss.8(1) and 11(1). The purpose of s.10(1) appears to be to identify the year in which the new tax begins and to provide for its continuance in subsequent years. When the then proposed Queensland law was discussed as a Motion in Committee, the Treasurer moved among other things: "That there be levied and paid land tax for this and each succeeding year upon the unimproved value of lands ...". This language is not identical with that of s.10(1), but the two were intended, in my view, to have similar effect. See Queensland Parliamentary Debates Vol. CXXI, p.2127. The appellant's contention would have us read s.10(1) as requiring the Commissioner to make the appropriate assessments in respect of a particular year during that year -- 24 of 30 -- 6 and not later and, secondly, as relieving any taxpayer in respect of whom the appropriate assessment has not been made in the relevant year of the liability imposed by the Act. If the legislative intention is in accordance with the first of these propositions, it has been oddly expressed. Sections 18 and 19 make fairly elaborate provision for the issue of assessments: had it been intended that such an important time limitation be placed upon the assessment power, one would have expected to find it in one of those sections, rather than in a section which makes no mention of assessments. It should be noted that the obligations which the Act imposes may fall upon persons whose existence is not necessarily discoverable from any public register. They may arise from the creation of a trust or the making of an agreement for sale passing possession to the purchaser; see the definition of "owner" in s.3. It would be odd if concealment until the expiration of the relevant year of the matters giving rise to the liability could put an end to the liability. An answer to that difficulty is to say that the proposition that absence of an assessment made during the year puts an end to the liability is subject to an exception, to cover the case of the taxpayer who provides no, or inadequate, information. Another possible reading is to give the benefit of the relief from liability supposedly implicit in s.10(1) only to those who have furnished a -- 25 of 30 -- 7 proper return in due time. The construction of s.10(1) for which the appellant contends necessitates, if the Act is to operate sensibly, the making of implications of uncertain content. If it be accepted that the proper construction of s.10(1) is such as to require the Commissioner to assess within the relevant year or, perhaps, so to assess if a proper return is furnished in due time, it is another step to hold that default on the Commissioner's part in performing this obligation has a beneficial consequence for the unassessed taxpayer. Leaving aside the effect of s.58(5), discussed in the reasons of my brothers, it appears to me that the better view may be that breach of that obligation, on the Commissioner's part, would not avail the taxpayer in an action brought on a late assessment. The Act nowhere says that if an assessment is not issued within the time it requires, then the liability to pay the tax in question and the statutory charge in relation to it under s.37 are both destroyed. It is not every breach of a statutory obligation which has an invalidating effect. A recent example of the truth of this proposition is Australian Broadcasting Corporation v. Redmore Pty. Ltd. (1989) 166 C.L.R. 454, in which a statute prohibiting the Corporation from entering into a contract of a certain kind without the approval of the Minister was held good, despite the absence of the approval. -- 26 of 30 -- 8 Further, it is my opinion that if the Act required an assessment to be made within a limited time and that was not complied with, that would be caught by the expression "the fact that any of the provisions of this Act have not been complied with" in s.58(5), quoted in my brothers' reasons. It is true that while s.58(5) expressly provides that an omission to give notice of assessment is not invalidating, it makes no such provision in respect of the making of a late assessment. But there is a possible explanation for that, namely that the statute imposes no time limit on the making of an assessment. If one must read the Act as obliging the Commissioner to assess within the relevant year and read s.58(5) as not applying so as to excuse breaches of provisions of the Act which are fundamental to the operation of the statute (as opposed to those which are ancillary) I would still be inclined to hold that the time limitation falls within the expression "any of the provisions of this Act" in s.58(5). Once it is accepted, as I think it should be, that as under the provisions considered in Tooth & Co. (above) the liability arises under the Act itself, not on assessment, it must follow that the assessment process cannot be fundamental in the relevant sense. I have come to the conclusion that the submission made on behalf of the appellant that the Act requires each assessment to be made during the relevant year is not correct; nor can I accept that if the Act does so require, -- 27 of 30 -- 9 a breach of that provision is destructive of the taxpayer's liability. The last question is the constitutional point. Although fairly elaborately argued, the point may be shortly disposed of. Assuming in favour of the appellant that it is protected against State legislation which discriminates against it as an agency of the Commonwealth, the question is whether an Act which removes, retrospectively, an exemption from a generally applicable tax can be within the principle. Here, it is the retrospectivity upon which the appellant fastens to make the argument good. It is true that the statutory provision of which it complains was not expressed to operate generally, but that was because there was no need for it to do so; persons other than those within it were already liable to pay the tax. There was no unconstitutional discrimination. In the result, I am of opinion that the judgment entered below was correct and would dismiss the appeal with costs. -- 28 of 30 -- 10 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 153 of 1992 Before the Court of Appeal The President Mr. Justice McPherson Mr. Justice Pincus BETWEEN: AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS CORPORATION LIMITED (Applicant) Appellant AND: COMMISSIONER FOR LAND TAX (Respondent) Respondent JUDGMENT - PINCUS J.A. Delivered the Twenty-fourth day of February 1993 -- 29 of 30 -- MINUTE OF ORDER: Appeal dismissed, with costs. CATCHWORDS: Counsel: P. Lyons Q.C., with him J. McKenna for the Appellant K. Dorney Q.C., with him F. Redmond for the Respondent D. Rose Q.C., with him G. Aitken for the Commonwealth Attorney-General, intervening in support of the Appellant Solicitors: Australian Government Solicitor for the Appellant Crown Solicitor for the Respondent Australian Government Solicitor intervening in support of the Appellant Hearing Date(s): 26 and 27 November 1992 -- 30 of 30 --