Fishwick v Cleland [1960] HCA 55

Fishwick v Cleland [1960] HCA 55

The Papua and New Guinea Act 1949-1957 was a valid law of the Commonwealth Parliament because it was supported by s. 122 of the Constitution and was not inconsistent with the Trusteeship Agreement or the Charter of the United Nations. The Income Tax Ordinance 1959 was valid because the Legislative Council remained competent to pass it despite vacancies caused by resignations of elected members, and because the Ordinance was not inconsistent with the Commonwealth income tax assessment legislation.

Jurisdiction
Australia
Procedural Posture
Action Seeking a Declaration That the Income Tax Ordinance 1959 (no. 26 of 1959) of the Territory of Papua and New Guinea Is Invalid / Case Stated by the Parties Pursuant to O.xxxv, R. 1
Outcome
Questions answered: (1) No, (2) No, (3) No. The plaintiff to pay the costs of the case stated.
Legal Topics
['validity of Commonwealth Legislation for Trust Territories' 'section 122 of the Constitution' 'external Affairs Power' 'trusteeship Agreement and Charter of the United Nations' 'validity of Territorial Income Tax Ordinance' 'legislative Council Vacancies' 'inconsistency Between Commonwealth and Territorial Taxation Laws']
['constitutional Law' 'taxation' 'territories' 'international Law'] ['validity of Commonwealth Legislation for Trust Territories' 'section 122 of the Constitution' 'external Affairs Power' 'trusteeship Agreement and Charter of the United Nations' 'validity of Territorial Income Tax Ordinance' 'legislative Council Vacancies' 'inconsistency Between Commonwealth and Territorial Taxation Laws']

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Procedural Posture

Action Seeking a Declaration That the Income Tax Ordinance 1959 (no. 26 of 1959) of the Territory of Papua and New Guinea Is Invalid / Case Stated by the Parties Pursuant to O.xxxv, R. 1

Legal Issues

  1. 1 ['Whether the Papua and New Guinea Act 1949-1957 was constitutionally invalid because it was inconsistent with the Trusteeship Agreement or the Charter of the United Nations.' 'Whether the Commonwealth Parliament had legislative power with respect to the Territory of New Guinea under s. 122 of the Constitution or s. 51 (xxix).' 'Whether the Income Tax Ordinance 1959 was invalid because the Legislative Council was not properly constituted when three elected members had resigned and their vacancies had not been filled.' 'Whether the Income Tax Ordinance 1959 was inconsistent with the Income Tax and Social Services Contribution Assessment Act 1936-1959.']

Ratio Decidendi

The Papua and New Guinea Act 1949-1957 was a valid law of the Commonwealth Parliament because it was supported by s. 122 of the Constitution and was not inconsistent with the Trusteeship Agreement or the Charter of the United Nations. The Income Tax Ordinance 1959 was valid because the Legislative Council remained competent to pass it despite vacancies caused by resignations of elected members, and because the Ordinance was not inconsistent with the Commonwealth income tax assessment legislation.

Court Disposition

Questions answered: (1) No, (2) No, (3) No. The plaintiff to pay the costs of the case stated.

Orders

  • ['Question (1) answered No.' 'Question (2) answered No.' 'Question (3) answered No.' 'The plaintiff to pay the costs of the case stated.']