07 September 2020

Magna Carta Again

Another misplaced belief in Magna Carta, this time in Zeqaj v Deputy Commissioner of Taxation [2020] FCA 1270. 

The Court states 

 The appellant’s material also required me to examine a medley of provisions:

(a) Paragraphs 51(ii) and (xii) of the Constitution (as set out in s. 9 of the Commonwealth of Australia Constitution Act 1900 (Imp.) 63 & 64 Vict., c. 12 (the “Constitution”)), which respectively provide Federal Parliament with the power to make laws with respect to taxation and with respect to currency, coinage, and legal tender; 

(b) Section 80 of the Constitution, which provides for a right to trial by jury “on indictment of any offence against any law of the Commonwealth”; 

(c) Section 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic.) (the “Charter Act”), which provides that “[e]very person has the right to life and has the right not to be arbitrarily deprived of life”; 

(d) Article 14(2) of the United Nations International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (the “I.C.C.P.R.”), which provides that “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”; 

(e) Article 11(1) of the United Nations Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) (the “U.D.H.R.”), which provides that “[e]veryone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”; 

(f) Chapter 39 of the Magna Carta 1215, which broadly provides that no person shall be taken or imprisoned, or dispossessed of her or his property, liberties or customs, or outlawed or exiled, or otherwise harmed except by lawful judgment of her or his peers or by the law of the land; 

(g) Chapter 40 of the Magna Carta 1215, which broadly provides that to no person will justice or right be sold, deferred or denied — while the appellant referred to Chs. 39 and 40 of the Magna Carta 1215, I observe that these chapters continue to have force of law in Victoria pursuant to ss. 3 and 8 of the Imperial Acts Application Act 1980 (Vic.) as Ch. 29 of the Magna Carta 1297, which consolidated Chs. 39 and 40: Antunovic v. Dawson [2010] VSC 377; (2010) 30 V.R. 355; and 

(h) Section 39B of the Judiciary Act, which relevantly vests this Court with “jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”. 

Following litigation commencing in 2014 there had been an order for sequestration of Zeqajt’s estate. In the current judgment the Court states

 First, the appellant contended that he was not appropriately served, alleging that there were attempts to “maliciously serve documents” on him in a public workplace. He relied upon reg. 16.01 of the Bankruptcy Regulations. The learned primary judge held that there was nothing in reg. 16.01 which could impugn the manner in which the relevant documents were served on the appellant. The learned primary judge noted that bankruptcy documents are still commonly served personally on the debtor to ensure there is no doubt the debtor is aware of the documents, and that nothing required the alternative methods set out in reg. 16.01 to be used (at [16]-[18]). 

Secondly, the appellant claimed that the learned primary judge did not have jurisdiction to hear an application for a sequestration order. His Honour held that the Federal Circuit Court has jurisdiction under the Bankruptcy Act to hear such an application, and has such accrued jurisdiction as is necessary to carry out that task (at [25]). 

Thirdly, the appellant attacked the constitutional validity of Commonwealth income taxation legislation in reliance upon a number of grounds:

(a) The appellant claimed that capital gains tax (“C.G.T.”) as assessed in accordance with Pt. 3-1 of the 1997 Act is unconstitutional, relying upon s. 51(xii) of the Constitution; his Honour queried the relevance of this paragraph and referred to s. 51(ii), which sets out the Commonwealth’s taxation power (at [26]-[27]]). 

(b) The appellant claimed that the Commissioner is not recognised by the Constitution; his Honour held that the Australian Taxation Office (the “A.T.O.”) is established appropriately by Commonwealth legislation that Parliament has power to pass under the Constitution. There is no requirement for the Commissioner’s position to be established by a provision in the Constitution itself (at [28]). 

(c) The appellant criticised the operation of the C.G.T. provisions, particularly the manner in which they address inflation; his Honour held that such policy criticisms of themselves carry no weight in legal proceedings (at [29]-[30]). 

(d) His Honour referred to and rejected a number of arguments purporting to rely upon the Constitution, including criticisms as to the constitutionality of notices issued under s. 260-5 of Sch. 1 to the T.A.A. (at [31]-[34], [45]). 

(e) The appellant argued that he had a constitutional right to trial by jury; his Honour rejected this argument as s. 80 of the Constitution only provides for trial by jury “on indictment of any offence”. That section is not relevant to the pursuit through civil proceedings of tax debts due and owing to the Commonwealth (at [35]‑[36]). 

(f) The appellant criticised the reversal of the onus of proof in the A.A.T; his Honour held, in reliance upon High Court authority, that there is nothing unconstitutional about reversing the onus of proof in proceedings (at [37]). 

(g) The appellant attacked the constitutionality of taxation in reliance upon Chs. 39 and 40 of the Magna Carta 1215. His Honour rightly held that the provisions, either in their English translation or original Medieval Latin form, did not provide a basis for concluding that the assessment of taxation under Australia’s taxation legislation is unconstitutional or, in any other form, faces legal impediments. The learned primary judge noted that most of the provisions of the Magna Carta 1215 were repealed in the 19th century in England and do not constrict the power of the Commonwealth under the Constitution (at [42]‑[44]). 

Fourthly, the appellant submitted that the imposition of taxation and the reversal of the onus of proof in some way arbitrarily deprived him of life, relying upon s. 9 of the Charter Act. He also contended that he had been denied the presumption of innocence as set out in Art. 14(2) of the I.C.C.P.R. and Art. 11(1) of the U.D.H.R. His Honour held that such arguments were not tenable in civil proceedings under Commonwealth taxation legislation, such as the proceeding before him (at [38]-[41]).