Gazzo v Comptroller of Stamps (Vic) [1981] HCA 73

Gazzo v Comptroller of Stamps (Vic) [1981] HCA 73

By majority, s. 90 of the Family Law Act 1975 (Cth), to the extent that it purports to exempt instruments executed in accordance with orders under Pt VIII from state-imposed stamp duty, is not a valid law of the Commonwealth, as its connexion with the marriage and divorce powers is not sufficiently close or necessary, and does not fall within the implied incidental powers. The exemption destroys rather than regulates or creates rights arising out of the marriage or divorce relationship, and improperly invades state legislative power over property and taxation.

Jurisdiction
Australia
Procedural Posture
Constitutional; Family Law; Appeal / Question Removed From Supreme Court of Victoria to High Court; Stated Case; Judgment on Validity of S. 90 of Family Law Act 1975 (cth)
Outcome
Section 90 of the Family Law Act 1975 (Cth), in its attempted application to stamp duties imposed under the Stamps Act 1958 (Vic) on transfers of land executed by a person in accordance with an order under Pt VIII of the Act, is not a valid law of the Commonwealth (majority). Matter remitted to the Supreme Court of...
Legal Topics
['commonwealth Power Over Marriage and Divorce' 'validity of Commonwealth Law Exempting State Tax' 'stamp Duty as a State Power' 'incidental Powers Under S. 51(xxi), (xxii), (xxxix) Constitution']
['constitutional Law' 'family Law' 'tax Law'] ['commonwealth Power Over Marriage and Divorce' 'validity of Commonwealth Law Exempting State Tax' 'stamp Duty as a State Power' 'incidental Powers Under S. 51(xxi),(xxii),(xxxix) Constitution']

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Procedural Posture

Constitutional; Family Law; Appeal / Question Removed From Supreme Court of Victoria to High Court; Stated Case; Judgment on Validity of S. 90 of Family Law Act 1975 (cth)

Legal Issues

  1. 1 ['Is s. 90 of the Family Law Act 1975 (Cth), which purports to exempt from state stamp duties transfers of land made pursuant to orders under Pt VIII of the Act, a valid law of the Commonwealth?' 'Does s. 90 fall within the powers conferred by s. 51(xxi) (marriage), s. 51(xxii) (divorce and matrimonial causes), or s. 51(xxxix) (incidental power) of the Constitution?' 'Is there a sufficient connexion between the subject matter of s. 90 and the heads of Commonwealth legislative power?']

Ratio Decidendi

By majority, s. 90 of the Family Law Act 1975 (Cth), to the extent that it purports to exempt instruments executed in accordance with orders under Pt VIII from state-imposed stamp duty, is not a valid law of the Commonwealth, as its connexion with the marriage and divorce powers is not sufficiently close or necessary, and does not fall within the implied incidental powers. The exemption destroys rather than regulates or creates rights arising out of the marriage or divorce relationship, and improperly invades state legislative power over property and taxation.

Court Disposition

Section 90 of the Family Law Act 1975 (Cth), in its attempted application to stamp duties imposed under the Stamps Act 1958 (Vic) on transfers of land executed by a person in accordance with an order under Pt VIII of the Act, is not a valid law of the Commonwealth (majority). Matter remitted to the Supreme Court of...

Orders

  • ['Section 90 of the Family Law Act 1975 (Cth), insofar as it applies to state duties, is not a valid law of the Commonwealth.' 'Matter remitted to the Supreme Court of Victoria.' 'No order as to costs.']