Super Profits Tax: Canberra or the States?
Written by ACM   
Tuesday, 01 June 2010

Ensuring a return to the people from minerals is not Canberra’s business. That is the constitutional position, argues Professor David Flint in this video of ACM’s first briefing on the proposed Resources Super Profits Tax.

Our constitutional system is centred on our Federal constitution, but includes all of those laws, customs and institutions by which the people have agreed to be governed.

 This brings in that golden thread of history that takes us back through the Glorious Revolution of 1688 to the Magna Carta, and forward through those signal documents through the twentieth century which established our independence.

[ Not their business ]

The Parliament consists of the representatives of the people. It is their forum, the place where the great legislative and policy proposals concerning our nation must be debated and decided.  

That is where the Henry Tax Review should have been tabled so that it could be debated in each chamber and across the nation, especially by those most concerned.

This should have been well before the government, advised by the independent public service, responded with its policy proposal.   

 Instead the review and the non government MP’s were put in a four hour media lockup to see not only the report but the government response.

The Federal Parliament was treated with contempt and the public service compromised.

Then we come to which polity has jurisdiction and authority over minerals and the other wealth from the ground.

Under our Federal Constitution, the people of each of the original states, humbly relying on the blessings of Almighty God, agreed to unite in an indissoluble Federal Commonwealth under the Crown and under the Constitution.

[ Their business, along with the other states ]

This was to establish a Federal Parliament with limited specified powers. None of those extend to the ownership and control of the minerals and other earth resources in and of the States. The Federal government claims it is acting because the minerals belong to all Australians. Most do, but they are not vested in the Crown in the right of the Commonwealth.

...minerals vested in the Crown...


The Crown our oldest institution and our constitutional guardian, has several manifestations.

There is the Crown in the right of the Commonwealth, and there is the Crown in the right of Western Australia, and the Crown in the right of Queensland, and South Australia, Victoria, Tasmania and New South Wales.

 Minerals are normally vested in the Crown in the right of the States. It is for the States to ensure that Australians receive a fair return through State royalties, not for the Federal government. grants...


Land grants by the Crown usually but not always reserved the minerals in the land granted to the Crown. This was always the Crown in the right of the relevant Colony, now State.

In further briefings Professor Flint will explain the argument that the tax is a nationalisation and whether this is in breach of the Constitution. He will refer to the nationalisation of private mineral rights in NSW.

He will also explain the argument that this is a tax forbidden by the constitution, and whether it is in breach of Australia’s international obligations.

....other briefings.....

Super Profits Tax: Massive International Law Claims LikelySuper Profits Tax: Not in a FederationSuper Profits Tax: A Nationalisation Without Compensation?          

Super Profits Tax: Who Owns The Minerals?

Banana Republic

Treasury head raises eyebrows

Super profits tax: Constitutional challenges likely

The Constitution and the Henry Tax Review