ROY MORGAN RESEARCH PTY LTD v FC of T

Judges:
Keane CJ
Sundberg J
Kenny J

Court:
Full Federal Court, Melbourne

MEDIA NEUTRAL CITATION: [2010] FCAFC 52

Judgment date: 26 May 2010

---

KEANE CJ, SUNDBERG AND KENNY JJ

Background

1. Between 1 July 2000 and 30 June 2006 the applicant (Roy Morgan) conducted market research, some on a regular basis and some on a sporadic basis according to client demand. Roy Morgan gathered some of the information it required for its research by paying people to interview members of the public either face to face or through computer aided telephone interviews (CATI). Roy Morgan did not treat the interviewers as employees, and did not lodge superannuation guarantee statements in relation to them under the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) or report that it had any superannuation guarantee shortfall in respect of the periods prescribed by the SGA Act.

2. On 13 September 2007 the respondent (the Commissioner) issued superannuation guarantee default assessments and amended assessments in relation to the periods in respect of which he considered Roy Morgan had been required to report. The assessments determined the amount of superannuation guarantee charge (SGC) Roy Morgan was liable to pay in respect of the relevant periods. Roy Morgan objected to the assessments. The Commissioner disallowed the objection and the Administrative Appeals Tribunal affirmed the Commissioner's decision. Roy Morgan has appealed to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal comes before a Full Court in consequence of a determination of the Chief Justice under s 44(3) of that Act.

Legislation

3. The issue before the Tribunal was whether Roy Morgan's interviewers were "employees" either within the ordinary meaning of the word in s 12(1) of the SGA Act or because they worked under a contract that was wholly or principally for their labour as specified in s 12(3). The Tribunal decided the interviewers were employees within both subss (1) and (3) of s 12. It was common ground before the Tribunal that if the interviewers were employees, the amount of SGC assessed by the Commissioner was payable.

4. Broadly speaking, the effect of the superannuation guarantee scheme established by the SGA Act and the Superannuation Guarantee Charge Act 1992 (Cth) (SGC Act) is that an employer is obliged to provide a prescribed minimum level of superannuation to all employees. If an employer fails to meet that obligation in full, any shortfall becomes a charge levied on the employer recoverable by the Commissioner, the SGC. The amount of the SGC includes a component for interest and an administration cost. Thus an employer has an incentive to make its contributions to superannuation without incurring the SGC. An employer who has a shortfall for any given year must lodge a superannuation guarantee statement for that year.

5. In providing for one legislative scheme by two Acts, the Commonwealth Parliament has followed the "traditional procedure to comply with the requirement of s 55 of the Constitution that laws imposing taxation shall deal only with the imposition of taxation" cf
Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 (Northern Suburbs) at 585. The SGC Act does no more than impose what the Commonwealth says is a tax and it fixes the rate. But without reference to the SGA Act the SGC Act would be incomprehensible. It is the SGA Act which deals with the incidence, assessment and collection of the charge. Accordingly, s 3 of the SGC Act says it is incorporated and to be read as one with the SGA Act.

6. Section 5 of the SGC Act imposes SGC on any superannuation guarantee shortfall of an employer for a quarter. By s 6 the amount of SGC payable on a shortfall for a quarter is an amount equal to the amount of the shortfall.

7. The SGA Act provides for the establishment and administration of the Superannuation Guarantee Scheme. Part 3 of the SGA Act (which consists of s 15B to s 32) deals with the liability of employers other than the Commonwealth and tax-exempt Commonwealth authorities to pay SGC. By s 16 SGC is payable by the employer. Section 17 provides:

If an employer has one or more individual superannuation guarantee shortfalls for a quarter, the employer has a superannuation guarantee shortfall for the quarter worked out by adding together:

• "(a) the total of the employer's individual superannuation guarantee shortfalls for the quarter; and
• (b) the employer's nominal interest component for the quarter; and
• (c) the employer's administration component for the quarter."

8. Section 19(1) provides that an employer's individual superannuation guarantee shortfall for an employee for a quarter is the amount worked out using the formula:

Total salary or wages paid by the employer to the employee for the quarter

×

Charge percentage for the employer for the quarter 100

The "charge percentage" is 9 except where that percentage is reduced under s 22 and/or s 23. Section 22 provides for the reduction of the charge percentage where contribution is made to a defined benefit superannuation scheme. Section 23 provides for the reduction of the charge percentage where an employer makes contributions to a retirement savings account (RSA) within the meaning of the Retirement Savings Accounts Act 1997 (Cth) or a superannuation fund other than a defined benefit superannuation scheme. Payments must comply with the choice of fund provisions in Part 3A of the SGA Act. In general terms, the effect of the scheme is that in order to avoid liability to SGC an employer must make contributions under s 22 and/or s 23 equal to the charge percentage.

9. Section 33(1) of the SGA Act requires an employer who has a superannuation guarantee shortfall for a quarter to lodge a superannuation guarantee statement for the quarter on or before specified dates. The statement must set out, amongst other things, the details of each employee in relation to whom the employer had an individual shortfall for the quarter, the amount of each such shortfall and the amount of SGC for the quarter: s 33(2). Before 1 July 2003, when s 33(1) assumed its present form, it required an employer with a shortfall for a year to lodge a statement by a particular date in the following year. When lodged, a statement has effect as an assessment of the employer's superannuation guarantee shortfall for the quarter and of the SGC payable thereon: s 35(1)(c). The assessment is taken to have been made on the dates set out in s 35(1)(d). The sum of the employer's individual shortfalls (together with the interest and administration components) specified in the statement is taken to be the amount of SGC payable by the employer for the quarter: s 35(1)(e), and the statement has effect as if it were a notice of assessment signed by the Commissioner and given to the employer on the day on which the assessment is taken to have been made: s 35(1)(f). Section 36 deals with default assessments. An employer who is dissatisfied with an assessment may object in the manner set out in Part IVC of the Taxation Administration Act 1953 (Cth): s 42.

10. Once SGC has been paid, Part 8 of the SGA Act (which consists of s 63A to s 71) sets out the way in which the Commissioner must pay, or otherwise deal with, an amount called the "shortfall component" for the benefit of a benefiting employee under s 64A or s 64B and under ss 65 to 67.

11. Section 63A(1) of the SGA Act provides that Part 8 applies "to a charge payment in respect of one or more employees … that is made by or on behalf of an employer". Section 63B(1) provides that:

"If a payment to which this Part applies is made, the Commissioner is required to pay … an amount which is called the shortfall component, for the benefit of a benefiting employee under sections 65 and 67."

12. Section 65(1) provides that, subject to exceptions which it is not necessary to notice:

"The Commissioner is required to deal with the amount of the shortfall component in one of the following ways:

• (a) in any case - pay the amount of the component, for the benefit of the employee, to
  • (i) an RSA; or
  • (ii) an account with a complying superannuation fund; or
  • (iii) an account with a complying approved deposit fund

  …

• (c) … credit the amount of the component to an account … under the Small Superannuation Accounts Act 1995 in the name of the employee."

13. It is sufficient to note here that moneys paid to the funds or accounts referred to in s 65(1) of the SGA Act are not actually payable to an employee until the occurrence of a pensionable event.

14. Section 12 of the SGA Act elaborately defines the words "employee" and "employer". It is only necessary to set out subss (1) and (3):

• (1) Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (11):
  • (a) expand the meaning of those terms; and
  • (b) make particular provision to avoid doubt as to the status of certain persons.

  …

• (3) If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.

Before the tribunal

15. Roy Morgan's Chief Executive Officer, Michele Levine, gave evidence on its behalf. Her evidence was not challenged. The Tribunal made numerous findings at [15] to [49] of its reasons as to the manner in which Roy Morgan carried on aspects of its business in the relevant period. We will not record all of them. Those of particular relevance to the issue before the Tribunal are as follows:

• 1. Roy Morgan's Establishment Survey Department (ESD) engaged approximately 120 people to conduct interviews. Each had to conduct eight interviews. The ESD kept a list of people willing to conduct interviews. Those on the list were not guaranteed that they would be given an assignment in any particular week, and they did not guarantee that they would be available.
• 2. The ESD mailed assignments to those on the list, together with any explanatory material regarding unusual or special aspects of the accompanying questionnaire, and any display cards or samples that were to be shown to those answering the questions. After completing the assignment, the interviewers were required to complete various forms summarising the work and claiming payment for the assignment. They returned the forms with the completed questionnaires. Roy Morgan did not take any action against an interviewer who failed to complete an assignment.
• 3. Roy Morgan's two other departments arranged their interviews in essentially the same manner as the ESD.
• 4. Roy Morgan sent a package of information to people who responded to its advertisements for interviewers. They were told that an assignment involved eight face to face interviews conducted over a weekend. They were informed they could work when they chose, though Roy Morgan would like them to commit to an average of two weekends per month, but it was entirely up to them.
• 5. People would know the interviewer was a Morgan Poll Interviewer because "Official identification is provided to reassure the public that interviewers are working for Roy Morgan". The 2003 version of a Consumer Opinion Trends Interviewer's Manual (COTI Manual) told interviewers they must display their ID card when they were "working for Roy Morgan", and must return the card if "you should terminate your employment with us".
• 6. Another document sent to potential interviewers told them, amongst other things, that
  • • they must have their own transport, and
  • • interviewers work as independent contractors "and therefore tax is not deducted", so they would need to apply for an Australian Business Number (ABN).
• 7. Interviewers who were assigned work had to follow a structured questionnaire from which they were not at liberty to depart. They had to read the questionnaire exactly as written, and not ad lib or prompt except as specifically set out in the questionnaire. The reason for this requirement was that great care was taken in designing the questionnaires, and even slight variations in the wording of a question could result in a significantly different answer being given. In order to provide a valuable statistical result, all respondents had to be asked the same question.
• 8. Interviewers had to follow any instructions given to them regarding the selection of respondents. They were not free to choose those to be interviewed, because it was important that respondents were randomly selected.
• 9. Interviewers had to be able to persuade the people they approached to answer the questionnaires. Roy Morgan did not train interviewers in ways in which to improve their persuasive skills, though the COTI Manual contained what were thought to be the best techniques for encouraging people to respond to questionnaires. Unless interviewers used "extreme methods" or it received a complaint from a respondent, Roy Morgan did not concern itself with the methods interviewers used to obtain and keep respondents' co-operation.
• 10. Roy Morgan did not monitor the way in which interviewers conducted interviews at the time the interviews took place. Monitoring occurred after the interviewers had returned their questionnaires. Roy Morgan telephoned respondents and asked questions such as whether the interview had taken place at all, whether any display cards had been used, and a random sample of questions asked.
• 11. Roy Morgan had a performance monitoring system regarding interviewers' performance. The CATI Interviewer Coordinator of the CATI Field Manager completed a report on the work of the interviewers and discussed the results with them. Reports were prepared after the first 12 hours, 40 hours, 100 hours, and 300 hours of interviewing and at any other time deemed necessary.
• 12. At the end of a financial year Roy Morgan sent each interviewer a statement of earnings paid during the year, but did not deduct any tax on a PAYE basis or issue a Group Certificate. It did not offer interviewers sick leave on a paid basis or otherwise.
• 13. Some interviewers were engaged by Roy Morgan under their own names; others under the name of a company or a business name. Some provided an ABN.
• 14. Interviewers were not permitted to delegate the task of interviewing.
• 15. Interviewers engaged by Roy Morgan were permitted to conduct interviews for its competitors, but could not conduct any other business while representing Roy Morgan or whilst on its business.
• 16. The results of the interviews were Roy Morgan's property, as was information revealed to interviewers while carrying out their work.

16. The Tribunal then undertook a detailed review of the leading cases on whether a person is an employee or something else. These included
Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537 (Vabu),
Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Hollis),
World Book (Australia) Pty Ltd v Federal Commissioner of Taxation (1992) 23 ATR 412 (World Book),
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens),
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 37 ATR 528 (Roy Morgan Centre),
Commissioner of State Taxation v Roy Morgan Research Centre Pty Ltd (2004) 90 SASR 12 (Roy Morgan SA) and
Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 (Marshall).

17. At [104] to [125] of its reasons the Tribunal considered some of the matters disclosed by the authorities as appropriate to be taken into account in determining whether a person is an employee or something else, and applied them to the case before it. In the course of this consideration, it made some further findings.

18. The first matter the Tribunal considered was Roy Morgan's and the interviewers' intentions regarding their relationship. Roy Morgan was said to have sent mixed messages regarding the basis on which it engaged interviewers. Pointing against an employment relationship were statements that they would be engaged as independent contractors, that they could have as many breaks as they liked but would not be paid for them, and that tax would not be deducted because they were independent contractors. Indicators of an employment relationship were that interviewers were required to display an ID card when "working for Roy Morgan", and the statement in the 2003 CATI Manual that interviewers earning more than $450 in a calendar month would be paid superannuation. In this last connection the Tribunal found that from at least the date the CATI Manual was used in 2005, superannuation would be paid if an interviewer worked for 25 hours or more each month.

19. Under the heading "Control or supervision", the Tribunal noted that although Roy Morgan did not have control over the work of an interviewer while a respondent was being interviewed, it could exercise "ultimate control" over the interviewer's work by declining to offer any further work after it had monitored the returned questionnaires. New interviewers who completed only four of the eight interviews were initially paid the full fee if they had attained a fair standard of speed and accuracy. This, said the Tribunal, was a form of control over interviewers, because the returns had to be assessed to determine whether they achieved that standard. It was a form of control intended to ensure that the work produced was of the required standard. The position was the same with the more experienced interviewers required to complete eight interviews. They could be paid a COT bonus, but only if the eight completed questionnaires were of a reasonable standard.

20. The Tribunal found that Roy Morgan gathered information through avenues other than interviews. However, when it chose to use interviewers, the answers they gathered were fundamental to the particular statistical analysis being undertaken. As statistical analysis was fundamental to Roy Morgan's business, the work of interviewers was an integral part of its business when it chose to use them to gather information. It noted indications that interviewers were engaged to produce a result for Roy Morgan, namely a questionnaire completed to the standard it required, and also indications that they were paid for their effort and not for a product. It noted its finding that interviewers could not delegate their work.

21. On the subject of "risk" the Tribunal found that interviewers did not face any financial consequence if the results following from the statistical analysis of the answers they obtained did not meet Roy Morgan's expectations. They incurred no significant expenditure in the course of their work. They were given an allowance for the cost of using their own vehicles, and in certain circumstances were reimbursed for the cost of taxi fares.

22. The Tribunal repeated that interviewers were permitted to work for others, which might be work of the same kind as that they performed for Roy Morgan. All they were prohibited from doing was performing work for others or for themselves at the same time as working for Roy Morgan.

23. In dealing with the provision of tools and equipment, the Tribunal noted at [122] that interviewers were generally required to have their own vehicle in which their documents could be safely stowed while they were working in the field. They were to maintain and insure it. Roy Morgan paid travel expenses and a certain rate per kilometre for the use of an interviewer's vehicle. If an interviewer did not have a vehicle and the starting point for work was more than three kilometres from home, Roy Morgan reimbursed public transport or taxi costs. It also reimbursed interviewers for half the cost of a street directory. Interviewers provided their own clip board and pen.

24. At [126] and [127] the Tribunal gave its overall assessment of the relationship between interviewers and Roy Morgan. Based on all the evidence, it concluded that the interviewers were engaged as employees. The passage is lengthy, and it is convenient to break it up into separate issues:

• • In so far as the crucial steps in the interviewers' work were concerned, Roy Morgan controlled them with precision. On a regular basis it checked that they had performed those steps. Although Roy Morgan looked to the interviewers to produce completed questionnaires, they had very little, if any, independent control over their contents. Interviewers were told how to ask the questions, whether they were closed or open, what words to emphasise and how to record the answers.
• • They were not engaged for a result or a product but for their labour in following the steps that would produce the result those steps were designed to produce.
• • They carried identification cards that showed they were doing the task for Roy Morgan.
• • Interviewers may well have other work that they perform whether as employees or as independent contractors. However this was irrelevant while they were performing work for Roy Morgan because, while they were engaged in that task, they could not pursue any other activity or work or use the information they obtained in any other activity or work. They were engaged in the business of Roy Morgan when they went about finding respondents to its questionnaires according to the procedures and processes it dictated.
• • Given that they were reimbursed for their travel expenses and half the cost of a street directory, they invested little, if anything, other than their time and persuasive and recording skills. They were not engaged in business on their own account even if they might, on other occasions and in other guises, be so engaged.
• • The fact that Roy Morgan paid money to someone other than the individual interviewer for that interviewer's assignments did not change the fact that Roy Morgan engaged the individual. Once engaged, the relationship between Roy Morgan and the interviewer was that of employer and employee.
• • The fact that an interviewer might reject an assignment or not be available to accept it from time to time did not change the relationship when the interviewer did choose to accept the assignment.
• • Roy Morgan's staff who conducted group discussions (where there were no defined questions) were described as "employees" in order that it might control the exercise of interviewers' skills. Its control was no less in the case of other interviewers. It controlled the others implicitly by means of the steps it required them to take, and overtly controlled the interviewers in group situations.

25. Having concluded that the interviewers were employees in the ordinary meaning of the word (s 12(1) SGA Act), the Tribunal said they were also employees within the extended meaning in s 12(3) - they worked "under a contract that is wholly or principally for labour of the person".

Scope of appeal

26. The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act, which limits its scope to an appeal "on a question of law". The existence of such a question is "not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself":
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178. The scope of the appeal does not render amenable to challenge the Tribunal's findings of fact unless the manner of their finding raises a question of law:
Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2008) 243 ALR 728 at [22]. A mixed question of fact and law is not a question of law within s 44(1):
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 (Hussain) at [32].

27. In its Further Amended Notice of Appeal Roy Morgan states the questions of law raised by the appeal as follows:

• (a) Are the interviewers employees of the Applicant within the meaning of section 12(1) of the Superannuation Guarantee (Administration) Act 1992?
• (b) Are the interviewers employees of the Applicant within the meaning of section 12(3) of the Superannuation Guarantee (Administration) Act 1992?
• (c) Are the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Guarantee Charge Act 1992 constitutionally invalid?

28. Question (c) was not raised before the Tribunal. However the Commissioner and the Attorney-General for the Commonwealth intervening did not object to the issue being raised for the first time on the appeal. It raises a question of law. The Attorney-General for the Commonwealth does object, however, to Roy Morgan's attempt to put the argument that the SGC Act and the SGA Act are invalid because Part 8 of the SGA Act is invalid. The Attorney-General's contention in this regard is that even if Part 8 of the SGA Act were to be held to be invalid, that would not affect the validity of the SGC Act. In the alternative, the Attorney-General argues that Part 8 of the SGA Act is valid because it is supported by one or more of s 51(xxiii) of the Constitution, being the power to make laws in respect of invalid and old age pensions, s 51(xx) in respect of trading and financial corporations, s 51(xiv) in respect of insurance, other than State insurance, and s 61, read with s 51(xxxix) the executive power, together with the incidental power.

29. Questions (a) and (b) do not raise questions of law. In
Hope v Bathurst City Council (1980) 144 CLR 1 at 7 Mason J, with whom Gibbs, Stephen, Murphy and Aickin JJ agreed, said:

"… whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.

…

However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens was just such a case. The only question raised was whether the appellant's behaviour was 'insulting'. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.

(footnotes omitted)"

30. This passage has been applied on many occasions.
Vetter v Lake Macquarie City Council (2001) 202 CLR 439 is an example. There at 451 Gleeson CJ, Gummow and Callinan JJ also quoted with approval the following extract from the judgment of Mason JA in
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557:

"… it may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.

The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact."

31.
Roy Morgan Centre 37 ATR 528 involved issues and facts very like those in the present appeal. Winneke P, with whom Phillips and Kenny JJA agreed, quoted with approval at 533 a passage from
Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 where Mummery J, speaking of a determination whether a person was a servant or independent contractor, said:

"This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another."

32. Winneke P went on to say at 533:

"Although technically it remains true that the question whether a person is engaged on a contract of service or for services is one of mixed law and fact, in reality the task of the trial judge in determining that question, in a case like the present one, involves an assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion."

His Honour added that where, as in that case, the resolution of the question is one of "fact and degree" in respect of which views may legitimately differ, it is difficult for an appellant who cannot identify specific error to demonstrate any error at all on the part of the trial judge.

33. It will be apparent that history (which also includes the South Australian decision in
Roy Morgan (SA) 90 SASR 12) is not on Roy Morgan's side. Roy Morgan is in an even less advantageous position in the present case than it was in the earlier Victorian decision in
Roy Morgan Centre 37 ATR 528. There an appeal to the Supreme Court was available where the Tribunal's decision "involved" a question of law. As pointed out by Byrne J at first instance (
Roy Morgan Centre(1996) 33 ATR 361 at 363), an appeal was available so long as "some question of law was involved" in the tribunal's decision. It did not matter whether the court considered the tribunal was right or wrong on that question of law, and the appeal was not limited to that question. The whole matter was to be reheard. In the present case, as we have said at [26], the appeal is limited to a question of law, the subject matter of the appeal is that question, and a mixed question of fact and law is not a question of law for the purposes of s 44(1).

34. The Commissioner submitted that in order to raise a question of law, question (a) (at [27]) would have to be confined to whether, on the facts as found, the interviewers fell within s 12(1) of the SGA Act. We doubt that that would solve the jurisdictional difficulty. Having regard to what has been said above about the nature of the task before the decision maker, the observations of Mason JA in
Williams[1971] 1 NSWLR at 557 (set out at [30]) would seem to be applicable. For the reasons given in
Roy Morgan Centre 37 ATR 528, different conclusions were reasonably open to the Tribunal, and the determination of which of them is correct is a question of fact. The Commissioner submitted that that was the position with question (b). If it was reasonably open to hold that the facts as found come within s 12(3), whether they do or not is a question of fact.

35. On the Commissioner's confined reformulation of question (a), the issue is whether, on the facts found by the Tribunal, the interviewers fell within s 12(1). In our view Roy Morgan has not established error of law in the Tribunal's decision. The Tribunal proceeded in accordance with authorities such as
Roy Morgan Centre 37 ATR 528 and
Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939, examined the various indicia pointing one way and the other, and in coming to its conclusion stood back and examined the overall effect of the detailed facts found. In the ensuing paragraphs we explain, by reference to each of Roy Morgan's contentions, why we have concluded that the Tribunal's decision is not susceptible to attack. We deal with question (b) at [63]-[70].

Question (A): section 12(1)

Control

36. Roy Morgan alleged error of law in the Tribunal's application of the control test. It was said that the Tribunal relied heavily on what it called Roy Morgan's control over the crucial steps in the interviewers' work: they had "very little, if any independent control" over the contents of the interviews, they were told how to ask the questions, what words to emphasise and how to record respondents' answers. Roy Morgan submitted that its insistence that the interviews be conducted in a particular fashion was not a relevant manifestation of control, but the identification of the task the subject of the interviewers' retainer. The series of steps interviewers were required to take were all directed to ensuring that the survey results were statistically valid.

37. That argument was rejected by the Court of Appeal in Roy Morgan Centre 37 ATR at 534-535. After a detailed examination of the evidence bearing on the conduct of the interviews, which was essentially the same as the evidence before the Tribunal in the present case, Winneke P said that many of the instructions went "as much to the manner of performance of the task as to its nature". His Honour concluded at 535:

"… it was well open to his Honour, on the material before him, to find that the degree of control being reserved by the appellant to direct both the nature of the task and the manner of its performance pointed towards the relationship of employer/employee. That material, as I see it, does not permit any significant distinction to be drawn between the control exercised in respect of the nature of the task and the control exercised over the manner of performance of that task."

Those observations are applicable to the present case. They were applied by the Full Court of the Supreme Court of South Australia in Roy Morgan SA 90 SASR at [26]-[28], on essentially the same facts.

Express provision in the contract

38. Roy Morgan's contention that the Tribunal "failed to have regard to the express provisions of the contract" as to the nature of their relationship is baseless. This is an unattractive contention given that the Tribunal was not invited to make a finding that the terms of the contractual engagement included a description of the relationship between interviewer and Roy Morgan as one of principal and independent contractor as opposed to employer and employee. Not surprisingly, the Tribunal made no specific finding on the issue, and it is difficult to see how this Court could conclude that the Tribunal erred in law in failing to make a finding of fact which it was not invited to make. In any event, the contention is without substance. The Tribunal found that Roy Morgan told interviewers they were engaged as independent contractors and consistently emphasised this in its written material including the various versions of the COTI Manual and the 2003 CATI Manual. The Tribunal also referred to the "mixed messages" given by Roy Morgan. In footnote 96 at [80] the Tribunal set out the following passage from the Privy Council's advice in
Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 389 about clause 3 of an agreement stating that the relationship between the parties was that of "Principal and Agent and not that of Master and Servant":

"Clearly cl 3, which, if it stood alone, would be conclusive in favour of the Society, cannot receive effect according to its terms if they contradict the effect of the agreement as a whole. Nevertheless, their Lordships attach importance to cl 3, and they consider that the following statement by Lord Denning MR in Massey v Crown Life Insurance Co (4 November 1977, unreported) correctly states the way in which it can properly be used: 'The law, as I see it, is this: if the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label upon it … On the other hand, if their relationship is ambiguous and is capable of being one or the other [ie either service or agency], then the parties can remove that ambiguity, by the very agreement itself which they make with one another. The agreement itself then becomes the best material from which to gather the true legal relationship between them."

Thus the Tribunal correctly instructed itself as to the way in which the parties' statement as to their legal relationship could be used if it did form part of their contract. What is not apparent is that there was a contractual statement by the parties as to the nature of their legal relationship.

39. It is apparent that by the time the Tribunal announced its conclusion it had come to the view that the weight of the evidence favoured a finding that the interviewers were engaged as employees rather than as independent contractors. In other words there was no real ambiguity as to the relationship. It is important to take into account the structure of the Tribunal's reasons. After its fact finding, the Tribunal examined the leading authorities. It then considered the indicia identified in the authorities and balanced them against each other. One of the matters it weighed in the balance as pointing against a conclusion that the interviewers were employees was the statement that they were engaged as independent contractors. Finally, at [126]-[129] it announced its conclusion. This it did by pointing to the factors that supported its conclusion that the interviewers were employees. There was no occasion here for the Tribunal to engage in a further balancing process, so as to revisit, for example, the contractual arrangement between the parties. As was said in Roy Morgan Centre 37 ATR at 537, approving the primary judge's treatment of comparable statements to those here, namely that the interviewers were independent contractors:

"His Honour clearly understood the significance of the [contractual statements] but said, correctly in my view, that 'it is a matter which must yield in its significance to the nature of the whole relationship between (the appellant) and its interviewers'."

No error has been shown in the Tribunal's treatment of the statements to which we have referred.

Provision of equipment

40. Roy Morgan contended that the Tribunal failed to take into account the significance of the fact that interviewers were required to have their own transport. The Tribunal found that interviewers were required to have their own reliable vehicle in which their documents could be safely stowed while they were working in the field. Interviewers were paid travel expenses at a rate per kilometre. Having a motor vehicle was obviously not a blanket rule, because the Tribunal also found that those who did not have a vehicle could in certain circumstances be reimbursed for taxi or public transport costs in lieu of car expenses. The Tribunal did not fail to take the provision of transport into account, and referred to it briefly in its conclusion at [126], saying that because interviewers were reimbursed for their travel expenses and half the cost of a street directory, they invested little, if anything, other than their time and persuasive and recording skills.

41. Roy Morgan's reliance on McHugh J's observations about the couriers' motor vehicles in Hollis 207 CLR at [71] does not assist. His Honour's was a lone voice on this issue. In any event there is a distinct difference between a requirement that a courier have a motor vehicle in order to be able to carry goods from one place to another, which is the essence of a courier's job, and a flexible requirement that an interviewer have a vehicle in which to keep documents secure while working in the field. More relevant are the observations of the majority at [56]. Their Honours were of the view that bicycles are not tools that are inherently capable of use only for courier work, but provide a means of personal transport. The same may be said of motor cars. In the cases relied on by McHugh J at [71], the vehicles in question were specialised conveyances: trucks for carrying timber and gravel respectively in
Humberstone v Northern Timber Mills (1949) 79 CLR 389 and
Wright v Attorney-General (Tas) (1954) 94 CLR 409. The Tribunal did not err in treating the flexible requirement to provide a vehicle in the way it did.

Production of a Result

42. The Tribunal concluded that the interviewers were not engaged for a result or a product but for their labour in following the steps that would produce the result those steps were designed to produce: [126]. At [113] to [116] the Tribunal considered the factors pointing in both directions on the labour/result issue, and at [126] stated its conclusion. A powerful factor in the balance was the fact that although interviewers were not paid at an hourly rate, the reward for a completed assignment was fixed by reference to the time Roy Morgan expected would be required to complete it. The COTI Manual stated that the set fee was based on an estimate of the time it should take an interviewer to prepare for the interviews, conduct them, complete the clerical work and report the result. This points to a reward for interviewers' time spent/labour rather than for a result. Although different views could reasonably be held on this indicium, it was in our view open to the Tribunal to reach the conclusion announced at [126]. We refer to what we have said at [26]-[35].

Incorporation

43. Roy Morgan wrongly asserted that the Tribunal failed to take into account that interviewers could incorporate. The Tribunal found that some interviewers were "engaged under the name of a company". It recorded the observations of Meagher JA in Vabu 33 ATR at 539 that the documents in that case contemplated that a courier may use a corporate name, and a "company does not usually have employee corporations". So the Tribunal was alert to the fact that an interviewer could incorporate, and that this was a relevant indicium. However it regarded it as outweighed by other indicia. It concluded that the fact that Roy Morgan paid money to "someone other than the individual interviewer for that interviewer's assignments does not change the fact that Roy Morgan engaged the individual". In other words it regarded the ability of an interviewer to incorporate as a factor entitled to little weight because the entity selected to do the work (conduct interviews) was the individual interviewer, and the company featured only as the recipient of the fees that would otherwise have been paid to the interviewer. No error has been shown in the Tribunal's treatment of this factor.

Interviewers' own business

44. Roy Morgan attacked the Tribunal's "finding that the interviewers 'were not engaged in business on their own account'". That is a finding of fact which is not amenable to challenge under s 44(1). In any event, the observations of Winneke P in Roy Morgan Centre 37 ATR at 538 are applicable to the present case:

"In my opinion, on no sensible view of the evidence could it be said that the interviewers were conducting such a business on their own account, as distinct from participating in the business of the appellant. In truth they were engaged by the appellant to conduct interviews on behalf of the appellant in a manner and form strictly controlled by the instructions given to them by the appellant. Accordingly they were told to represent themselves to respondents as engaged in a 'Morgan' research programme to give credibility to their task. If the function was not performed in accordance with the instructions given the sanction was that no further assignment would be made available. Close conformity with instructions was essential to the appellant in order that it could comply with its own obligation to its customers to provide accurate survey results.

…

The fact that the interviewers had a discretion as to whether they would accept an assignment, and a limited discretion as to when such assignment would be carried out does not detract from the view which I have formed that the degree of control exercised by the appellant was so extensive that it strongly points to the conclusion that they were, in truth, engaged in the business of the appellant. The circumstances that the appellant provided for the interviewers such equipment as they needed, that the appellant paid expenses, that the interviewers were not permitted to delegate the task assigned and that the interviewers had no responsibility for capital investment or management and had limited financial risk, only confirm my conclusion that the interviewers were engaged in the business of the appellant and were not engaged in business on their own account."

In Roy Morgan SA 90 SASR 12 the Full Court of the Supreme Court of South Australia followed Roy Morgan Centre 37 ATR 528, noting that the facts in Roy Morgan SA 90 SASR 12 were almost identical to those in the Victorian case. The Full Court adopted the passage from Winneke P's judgment set out above. There is conclusive support in the authorities for that approach.

45. In
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48, Dixon J (as his Honour then was) distinguished between an independent contractor who "carries out his work, not as a representative but as a principal" and an employee who is a "representative (of the employer) standing in his place and, therefore, identified with him." In the reasons of the majority of the High Court in Hollis 207 CLR at [39]-[42], Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ referred to this statement by Dixon J and went on to say:

"This statement merits close attention. It indicates that employees and the independent contractors perform work for the benefit of their employers and principals respectively. Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee. However, Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor. These notions were later expressed positively by Windeyer J in Marshall v Whittaker's Building Supply Co. His Honour said that the distinction between an employee and an independent contractor is 'rooted fundamentally in the difference between a person who serves his employer in his, the employer's business, and a person who carries on a trade or business of his own'. In Northern Sandblasting, McHugh J said:

'The rationale for excluding liability for independent contractors is that the work which the contractor has agreed to do is not done as the representative of the employer'

…

In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise.

(footnotes omitted)"

46. In the light of these statements, the findings of facts in the present case relating to the representative capacity in which the interviewers acted assume significance for the character of the relationship between Roy Morgan and each interviewer. No interviewer would have expected to "get a foot in the door" with the members of the public he or she wished to interview, had he or she not been able to introduce himself or herself as acting on behalf of Roy Morgan. The "product" obtained by the interviewer could hardly be regarded as marketable as part of the business of the interviewer. The interviewer's activity generated no goodwill which might enure for the benefit of the interviewer. Information obtained by the interviewer was obtained on Roy Morgan's behalf and for its exclusive benefit. The client for whom the interview was conducted was exclusively the client of Roy Morgan.

47. In conformity with the approach supported by the authorities, the Tribunal looked at factors of established relevance in order to derive a picture from the accumulation of detail. Some factors pointed towards the interviewers serving Roy Morgan in its business and others pointed towards them carrying on a business of their own. In the passage complained of at [126], in the Tribunal's overall assessment of the relationship, it noted that the interviewers were engaged in Roy Morgan's business when they went about finding respondents to its questionnaire according to the procedures and processes it dictated; that they were reimbursed for their travel expenses and half the cost of a street directory, so that they invested little, if anything, other than their time and persuasive and recording skills. It was on that basis that the Tribunal concluded that the interviewers were not engaged in business on their own account. It had earlier referred, under the heading "Risk", to the fact that they did not face any financial consequences if the results following from the statistical analysis of the answers they obtained did not meet Roy Morgan's expectations. Nor did they face any financial consequences if they did not complete their assignments. The contrast between their situation and that of the driver in
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 and the couriers in
Vabu 33 ATR 537 is clear. In the latter case at 538 Meagher JA, with whom Sheller and Beazley JJA agreed, adopted the words of MacKenna J in
Ready Mixed Concrete (South East) Ltd [1968] 2 QB at 525-526 to describe the couriers: "'the ownership of the assets, the chance of profit and the risk of loss in the business of carriage are his and not the company's", a consideration which points to the couriers being independent contractors".

No obligation to work

48. The Tribunal found that interviewers did not guarantee their availability for a particular assignment. In its overall assessment of the relationship between Roy Morgan and the interviewers the Tribunal said the fact that an interviewer might reject an assignment or not be available to accept it from time to time "does not change the relationship when the interviewer did choose to accept the assignment". Thus the Tribunal did not attach importance in its overall assessment of the relationship to the fact that interviewers did not guarantee their availability for a particular assignment.

49. The fact that an interviewer could decline to carry out an assignment was a matter the Court of Appeal in
Roy Morgan Centre 37 ATR 528 said did not detract from its conclusion that the degree of control exercised by Roy Morgan was so extensive that it strongly pointed to the conclusion that the interviewers were engaged in Roy Morgan's business. On essentially the same facts the Full Court in Roy Morgan SA 90 SASR 12 said that the primary judge's reliance on the fact that interviewers could refuse work was outweighed by more powerful considerations which correspond with the indicia relied on by the Tribunal in the present case for concluding that the interviewers were employees. Having regard to the Tribunal's own findings about the degree of control Roy Morgan exercised over the interviewers, and the way in which an interviewer's freedom to decline work was treated in
Roy Morgan Centre 37 ATR 528 and Roy Morgan SA 90 SASR 12, the Tribunal had no choice but to attach little importance to this factor. There was no error of law in the Tribunal's treatment of this issue.

Other work

50. The next complaint is that the Tribunal erred in law in formulating and applying the test set out in
Stevens 160 CLR 16 that the interviewers "may well have other work that they perform whether as employees or as independent contractors. That they have is irrelevant while they are performing the task for Roy Morgan for, while they are engaged in that task, they may not pursue any other activity or work in which they may be engaged and may not use the information they obtain in any other activity or work". The quoted words are in fact the Tribunal's and not those of any "test" in
Stevens 160 CLR 16.

51. In Stevens 160 CLR at 36-37 Wilson and Dawson JJ said that the right to the exclusive services of the person engaged pointed towards a contract of service. In the passage quoted the Tribunal was simply summarising the evidence that bore on this issue. Interviewers were not precluded from working for other enterprises, including competitors of Roy Morgan. But when they were working for Roy Morgan they were not to pursue other activities, either for their own benefit or for others. Further, information they obtained while working for Roy Morgan could not be used for other purposes or advantages. We are unable to discern how the Tribunal's rendering of this evidence, in its overall assessment of the parties' relationship, constitutes an error of law in "formulating and applying the [unidentified] test set out in Stevens v Brodribb".

Far reaching consequences

52. Roy Morgan contended that the Tribunal erred in failing to have regard to the disturbance to the existing business arrangements put in place by it and the interviewers that would be caused by a finding that the interviewers were employees. Three adverse consequences to the interviewers were asserted. The first is that by reason of being treated as independent contractors the interviewers will have been eligible throughout the relevant period to claim deductions for their own superannuation contributions pursuant to s 82AAT of the Income Tax Assessment Act 1936 (Cth). It is said that a decision that they are employees under the SGA Act will deny them the benefit of claimed deductions in the event that income earned as an employee exceeds 10 per cent of their income and expose them to penalties and interest charges for any deduction so claimed.

53. The second adverse consequence is said to be that as employees the interviewers will not be eligible to be registered on the Australian Business Register or eligible to be registered for the purposes of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the GST Act). Consequently, interviewers whose affairs had been arranged in reliance on their characterisation as independent contractors may have incorrectly claimed input tax credits under the GST Act, lodged Business Activity Statements under that Act or otherwise conducted their taxation affairs on the basis of their understanding that they were independently contracting with Roy Morgan.

54. The third adverse consequence asserted is that if Roy Morgan were now to pay SGC, the interviewers would be exposed to up to 93 per cent taxation on excess superannuation contributions calculated pursuant to Division 292 of the Income Tax Assessment Act 1997 (Cth).

55. In this connection Roy Morgan placed reliance on the observations of McHugh J in Hollis 207 CLR at [69]:

"I am not in favour of extending the classical tests or their application to make the couriers employees of Vabu. To do so would be likely to unsettle many established business arrangements and have far-reaching consequences for industrial relations, for workers' compensation law, for working conditions, for the obligations of employers to make superannuation contributions and group tax deductions and for the payment of annual and long service leave and taxes such as payroll tax. It would be likely to make employers retrospectively guilty of a number of statutory offences.

(footnotes omitted)"

56. In
Hollis 207 CLR 21 the issue was whether Vabu was vicariously liable for the negligence of a bicycle courier in the course of making a delivery. The majority held that Vabu was vicariously liable on the ground that the courier was its employee. McHugh J held that the courier was not an employee or an independent contractor of Vabu but was its agent acting within his authority as its representative in carrying out its contractual obligations for its benefit, and that it was vicariously liable on that basis.

57. The majority regarded their decision-making process as an application of existing principle. There was no reformulation of basic principle, for example by reclassifying "the liability of Vabu, as an independent contractor, in relation to Mr Hollis": at [59]. On the other hand, McHugh J regarded the characterisation of the courier as an employee as "an extension of the classical tests": at [69]. This would effect a change in the law, with the consequences his Honour identified in the passage quoted at [55] above. The present case involves an application of well-established tests to the facts of the case. No departure from established principle is in contemplation. Accordingly, the matters to which McHugh J drew attention are of no assistance to Roy Morgan. They reflect one of the considerations to which the High Court has regard when it is asked to change the common law or its view of statute law reflected in its earlier decisions: have entities in reliance on an earlier course of decisions so ordered their affairs that it would be undesirable to depart from established authority? See, for example,
The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 56-58 and
John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-439.

58. Roy Morgan's present complaint is that the Tribunal erred in failing to have regard to the existing business arrangements put in place by it and the interviewers. The adverse consequences relied on in this connection are not in our view considerations the Tribunal was bound to take into account:
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. In the absence, as in this case, of any express statement in the SGA Act that the effect of a decision on those who are alleged to be employees is to be taken into account, there will be an obligation on a decision-maker to take that matter into account only if an implication that it is bound to do so is to be found in the subject-matter, scope and purpose of the SGA Act. There is no such implication. The decision-maker's task is to decide whether a person is an employee. There are elaborate definitions and descriptions in s 12 of the SGA Act to assist the decision-maker. There is nothing in the subject-matter, scope or purpose of the SGA Act that suggests that someone who is thought by the decision-maker to be an employee should be found not to be one if to so characterise him or her would cause the type of inconvenience that is asserted here.

59. In any event, the material before the Court provides no factual basis for the adverse consequences to interviewers relied on by Roy Morgan. There is no evidence that interviewers claimed deductions for superannuation contributions or that in reliance on their characterisation as independent contractors they incorrectly claimed input tax credits, lodged Business Activity statements or otherwise conducted their taxation affairs on the basis that they were independent contractors.

60. Roy Morgan placed reliance on the observations of Meagher JA in Vabu 33 ATR at 538-539 when listing the considerations which made him think the couriers were not employees. One of them was:

"The taxation position of the couriers is also important. The couriers were taxed as independent contractors and not as employees … What is significant is not that the couriers tell the Commissioner that they are independent contractors not employees, but that the Commissioner, presumably after making whatever investigation he deems proper, acquiesces in their description of themselves and taxes them accordingly."

61. It is not clear in what sense his Honour used the word "acquiesces". If in the sense of an estoppel, a difficulty may be created by the fact that conduct on the part of the Commissioner cannot operate as an estoppel against the operation of the tax legislation: see
Federal Commissioner of Taxation v Wade (1951) 84 CLR 105 at 117. However we need not pursue this matter, which was not the subject of submissions. We do not know what evidence was available to Meagher JA as to the conduct of the couriers and of the Commissioner that gave rise to an acquiescence on the part of the latter. There was no evidence before the Tribunal of the dealings between the interviewers and the Commissioner in this respect. In its absence we would be unable to determine whether the latter has relevantly acquiesced, and if so, what flows from it in terms of the Commissioner's ability or otherwise to levy SGC on Roy Morgan. More importantly, the present argument was not propounded before the Tribunal. Accordingly, the Tribunal did not err in law in failing to deal with the far-reaching consequences contention: Hussain at [38]-[39];
Comcare v Davies [2008] FCA 393 at [21];
Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [88]-[90].

ABNs

62. The position is the same with Roy Morgan's claim that the Commissioner's conduct in giving some of the interviewers ABNs constituted acquiescence in their description of themselves as contractors. There is no evidence of what transpired between the Commissioner and the interviewers in relation to the latters' applications for ABNs or what relevant information they disclosed to the Commissioner on the basis of which he issued ABNs. This contention also raises the question of estoppel in its application to the Commissioner and the operation of the tax laws.

Question (B): section 12(3)

63. Roy Morgan contended that the Tribunal erred in concluding that the interviewers were employees within s 12(3) of the SGA Act on the ground that, properly characterised, the contracts with the interviewers were for the completion of interviews, not the provision of labour.

64. Having concluded that the interviewers were employees at common law, the Tribunal said it would reach the same conclusion under s 12(3). It went on:

"I have already found that those engaged to interview were engaged to carry out certain steps prescribed by Roy Morgan. Each entered a contract with Roy Morgan and, under that contract, each was engaged to carry out the prescribed steps. The outcome achieved by each interviewer who took the steps was a completed questionnaire which would then be returned to Roy Morgan. An interviewer could not exercise any discretion in asking the questions beyond that expressly conferred by Roy Morgan. They were not contracted to provide information as such but to take steps that would lead to the production of information. They were contracted to provide the labour to take those steps. Therefore, I find that interviewers were employees within the meaning of s 12(3) of the SGAA for they were engaged under contracts that were wholly or principally for the labour of the person; the person is an employee of the other party to the contract."

65. Roy Morgan relied on World Book 23 ATR 412 for the proposition that a contract which is undertaken by the contractor to produce a given result is not a contract which is principally for the labour of a person, "because the labour is undertaken not for the principal but for the contracting party himself to produce the result he has contracted to produce". Our rejection at [42] of Roy Morgan's contention that the Tribunal erred in concluding that the interviewers were not employed to produce a result disposes of this ground.

66. In its notice of appeal, though not in its written or oral submissions, Roy Morgan complained that the Tribunal's error lay in failing to give any or any adequate consideration to the degree of skill exercised by the interviewers. The Tribunal found that interviewers were not selected because they were skilled in drafting questions properly. Roy Morgan did not engage them to exercise such skill, or train them to develop it. The skill for which it selected interviewers was their ability to read and comprehend English. It engaged them to exercise this skill, but did not provide any training in this connection. It also found that Roy Morgan did not train interviewers in ways in which to improve their persuasive skills, that is to say their ability to persuade people to answer the questionnaires, though the COTI Manual contained advice that, if followed, would improve interviewers' chances of securing respondents. The advice related to matters such as being well-groomed, self-assured and professional. Having regard to those findings, we do not accept that the Tribunal failed to give any or any adequate consideration to the degree of skill exercised by the interviewers.

67. Roy Morgan submitted that s 12(3) is directed to a narrow category of persons, namely those who provide tools and equipment as part of their working arrangements. Such people may not be considered to be employees at common law solely by reason of their provision of tools and equipment. It said s 12(3) "goes no further than this simple expansion".

68. In
Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 (Atlas Products) at 425 Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ explained what it was that the expansion in a provision such as s 12(3) was designed to cover:

"It is not unusual for contracts of employment to create obligations on the part of the servant not only to make his services or labour available to the master but also to do additional things. He may, for instance, be required to provide his own tools or equipment … In many such cases the payments stipulated for may be said to be payments made under a contract wholly or substantially for the labour of the person to whom the payments are made …"

In other words, s 12(3) is designed to expand the ambit of the common law understanding of an employee so as to include a person who, though providing labour, might not at common law be an employee because, for example, he or she provides tools and equipment to make the labour more productive.

69. This explanation was elaborated somewhat in
Marshall 109 CLR 210. There the definition of "worker" was expanded to include a person working in connection with the felling, sawing or carriage of timber for another person under a contract of service, "the remuneration of the person so working being in substance a return for manual labour". Kitto, Taylor, Menzies and Owen JJ at 214 said that the function of the words "in substance":

"is to enlarge the description which the words immediately following provide, so that the definition may apply not only where the remuneration is a return for manual labour bestowed by a person upon the work in which he is engaged and for nothing else, but also where, although the remuneration is a return for something else also, the something else is comparatively so insignificant that in reality, or as one might say to all intents and purposes, it is a return for manual labour so bestowed. For instance, the definition could cover a tradesman who provides his hand tools to do the manual work required of him by his contract or a man whose work in performing his contract is not wholly manual."

Conclusion on status of interviewers

70. No error has been shown in the Tribunal's characterisation of the interviewers as "employees" within s 12(1). The Commissioner does not need to rely on the expansion effected by s 12(3). However, if interviewers' provision of clip boards, pens and in some cases motor vehicles were to take them outside the common law meaning of employee, which we do not think is the case, on the view espoused in
Atlas Products 94 CLR 419 and
Marshall 109 CLR 210, s 12(3) would bring them back. Having regard to our clear view that the interviewers were "employees" within s 12(1) we need not deal with Roy Morgan's contention, raised for the first time in its written submissions in reply, that the Tribunal denied it procedural fairness in the way in which it dealt with s 12(3).

The constitutional issues

71. History is not on Roy Morgan's side in its challenge to the validity of the SGC Act and the SGA Act. In
Hollis 207 CLR 21 and
Austin v Commonwealth (2003) 215 CLR 185, the High Court considered the operation of the SGC Act and the SGA Act. In neither case was any question raised as to the constitutional validity of the legislation. It may be said that in these cases the High Court was not called on to express even a tentative view as to the validity of the legislation; but it is fair to say that the absence of even an expression of concern as to the validity of the exaction in question is a reason for treating Roy Morgan's arguments on the constitutional issues with circumspection.

72. On Roy Morgan's behalf it is submitted that the only relevant head of power for legislative imposition of the charge is s 51(ii) of the Constitution, which empowers the Commonwealth Parliament to make laws with respect to taxation, and that the charge is not a tax because it is not imposed for public purposes. Because the shortfall component paid out under s 65 of the SGA Act for the benefit of employees corresponds to the amount of the charge exacted by s 5 and s 6 of the SGC Act, it is said that the charge is a liability which is private in nature similar to the liability to pay child support which it was held in
Luton v Lessels (2002) 210 CLR 333 (Luton) did not impose a tax. Roy Morgan also submits that Part 8 of the SGA Act is invalid in that it is not supported by any head of legislative power available to the Commonwealth and, Part 8 of the SGA Act being an inseverable part of the legislative scheme, both the SGC Act and the SGA Act are invalid. In its Further Amended Notice of Appeal Roy Morgan submitted in the alternative that the Acts were invalid as an acquisition of property other than on just terms. This ground was not pursued in its written or oral submissions.

73. We do not accept these submissions. In our respectful opinion, s 51(ii) of the Constitution supports the exaction of the charge established by the SGA Act and the SGC Act, and the decision of the High Court in
Luton 210 CLR 333 does not support a contrary view.

An exaction for public purposes

74. In
Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 at 276, Latham CJ described a tax as characteristically "a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered." In
Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 467 a unanimous High Court, taking a more impressionistic approach, expressed the view that, in principle, the compulsory exaction of money might be characterised as a tax even though it was exacted "for purposes which could not properly be described as public." But even if it be accepted that an exaction must be for public purposes if it is properly to be characterised as a tax, the exaction effected by s 5 and s 6 of the SGC Act is for public purposes insofar as it provides an incentive to all employers to contribute to the superannuation needs of their employees. In
Austin v Commonwealth (2003) 215 CLR 185 at [57]-[58], Gaudron, Gummow and Hayne JJ referred to the SGC Act, the SGA Act, and the Superannuation Guarantee (Consequential Amendments) Act 1992 (Cth) as together implementing a policy concerned with "the making of stipulated contributions by employers". In our respectful opinion, an exaction, the purpose of which is to encourage all Australian employers to contribute to the financial needs of all Australian employees in old age or infirmity is an exaction for public purposes.

75. In
Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 (Tape Manufacturers), the High Court held that legislation which imposed on vendors of blank tapes an obligation to pay a specified "royalty" to a collecting agency for distribution to copyright owners by way of recompense in respect of home copying of sound recordings was a law with respect to taxation. The circumstance that the royalty was imposed to recompense one group of persons at the expense of another did not prevent the exaction being characterised as a tax.

76. In Tape Manufacturers 176 CLR at 504-505, Mason CJ, Brennan, Deane and Gaudron JJ said:

"The only possible reason … for holding that the provision in question in this case is not a law imposing taxation is that an expropriation from one group for the benefit of another as an incident of legislative regulation of interests on a subject matter within power, with a view to bringing about what is conceived to be an equitable outcome, is not an exaction for public purposes and is therefore not a tax. In one sense it may be said that the purpose is private in that it concerns the interests of the two groups only. But, in truth, the legislative solution to the problem proceeds on the footing that it is imposed in the public interest. Indeed, the purpose of directing the payment of the levy to the collecting society for ultimate distribution of the net proceeds to the relevant copyright owners as a solution to a complex problem of public importance is of necessity a public purpose."

77. In this case, as in Tape Manufacturers 176 CLR 480, the raising of revenue from one group of persons within the community for the purpose of its application for the benefit of another group of persons can be seen to be an exercise in raising revenue for the public purpose of compensating the second group of persons in circumstances where they had no prior legal right against the first group to receive the payments.

78. In
Northern Suburbs 176 CLR 555, the High Court upheld the validity of the Training Guarantee Act 1990 (Cth) and the Training Guarantee (Administration) Act 1990 (Cth). It is apparent that the SGA Act and the SGA Act were modelled on that earlier legislation. The Training Guarantee Act imposed a charge corresponding to the amount by which an employer's annual expenditure on training its workforce fell short of a minimum amount which an employer was required to spend on training. The employer was liable to pay that amount to the Commissioner of Taxation, and an equivalent amount was then appropriated from the Consolidated Revenue Fund to a trust account to be expended on workforce training pursuant to training guarantee agreements between the Commonwealth and the States. The High Court held that the exaction of funds for expenditure on training of some employees was a public purpose. Mason CJ, Deane, Toohey and Gaudron JJ (with whom Brennan J relevantly agreed) said at 569-570:

"…the fact that the revenue raising burden (of an Act) is merely secondary to the attainment of some other object or objects is not a reason for treating the charge otherwise than as a tax . One might as well suggest that a protective customs duty is not a tax because its primary object is the protection of a particular local manufacturing industry from overseas competition.

If a law, on its face, is one with respect to taxation, the law does not cease to have that character simply because Parliament seeks to achieve, by its enactment, a purpose not within Commonwealth legislative power. In Osborne v The Commonwealth, the Court rejected a challenge to the validity of the Land Tax Act 1910 and the Land Tax Assessment Act 1910 (Cth) which was based on the ground that their object was to prevent residents owning large areas of land or to prevent landholders from residing out of Australia or to prevent absentees from holding land in Australia. Subsequently, in Radio Corporation Pty Ltd v The Commonwealth, Latham CJ (with whom Rich, Starke and McTiernan JJ agreed) said:

'After Osborne v The Commonwealth, it is difficult to contend that an Act relating to taxation is invalid because it is designed for the purpose of carrying out a policy of the Commonwealth Parliament which affects matters which are themselves not directly within the legislative power of the Parliament'

Fairfax v Federal Commissioner of Taxation likewise demonstrated that, in the characterization of a law with respect to taxation, the legislative purpose has limited relevance. That case concerned the validity of statutory provisions which denied to trustees of superannuation trusts the general exemption from liability to income tax on the investment income of the trust, unless the investments of the trust contained a specified proportion of Commonwealth and other public securities. Kitto J said:

'The legislative policy is obvious and may be freely acknowledged: it is to provide trustees of superannuation funds with strong inducement to invest sufficiently in Commonwealth and other public securities. The raising of revenue may be of secondary concern. But the enactment does not prescribe or forbid conduct. Its character is neither fully nor fairly described by saying that it makes trustees of superannuation funds liable to pay for failing to do what the legislature wishes. To adapt the language of Higgins J in R. v Barger, the substance of the enactment is the obligation which it imposes, and the only obligation imposed is to pay income tax. In substance as in form, therefore, the section is a law with respect to taxation'

(footnotes omitted)"

79. Similarly, in Northern Suburbs 176 CLR at 589, Dawson J said:

"The fact that the wider object of the legislation is to encourage employers to pay for training programs themselves and so avoid the charge does not alter the true nature or character of the impost. After all, any protective tariff ultimately aims to eliminate the activity which gives rise to its incidence, yet a protective tariff is clearly a tax. There is more than a hint of Barger's Case in this aspect of the plaintiff's argument, but that case, if it survived Osborne v The Commonwealth was laid to rest in Fairfax v Federal Commissioner of Taxation. In Fairfax the Court rejected the doctrine that 'a law which purports to provide for a tax upon behaviour is in substance not a law with respect to taxation if it exhibits on its face a purpose of suppressing or discouraging the behaviour and is to be explained more convincingly as a means to that end than as a means to provide the Government with revenue'. The same reasoning applies where the purpose of the law is to encourage rather than discourage behaviour. As Windeyer J put it:

'The Commonwealth Parliament may use its power to make laws with respect to taxation in order to promote some purpose that it desires to promote. The law is not thereby rendered invalid. The question is only: is it properly described as a law with respect to taxation? … A law with respect to taxation may do no more than exempt from a tax that would otherwise be exigible persons or transactions that answer certain descriptions or fulfil certain conditions'

(footnotes omitted)"

80. Roy Morgan seeks to distinguish the present case from
Northern Suburbs 176 CLR 555 by pointing out that, under the training guarantee scheme, there was no requirement that funds collected pursuant to the charge be expended for the benefit of the particular trainees from whom the charge had been exacted. But this circumstance was not relevant to demonstrating that the training guarantee levy did not have the positive attributes of a tax. Rather it was relevant to demonstrating that the positive attributes were not trumped by the consideration that the charge was a fee for service (and therefore not a tax). That this is so is apparent from the following passage in the reasons of Mason CJ, Deane, Toohey and Gaudron JJ at 566-568:

"It is beyond question that the Act imposes a compulsory levy, exacted by the Commonwealth itself and enforceable by law. And s 34 of the Administration Act provides that the moneys so collected are to be applied for certain enumerated public purposes. In Air Caledonie International v The Commonwealth, this Court affirmed that it 'suffice[s] to stamp an exaction of money with the character of a tax' if those positive attributes are present in combination with the negative attribute identified by Latham C.J. in Matthews v Chicory Marketing Board (Vict), namely, that the levy is 'not a payment for services rendered'. But, as the Court emphasized in Air Caledonie, this proposition is not to be applied as an exhaustive definition of a tax. In particular, the negative attribute 'not a payment for services rendered' should be seen 'as intended to be but an example of various special types of exaction which may not be taxes even though the positive attributes … are all present' for the reason that the presence of other characteristics may indicate that the exaction is not in its true character a tax. The plaintiff pointed to three suggested characteristics of the Act and the Administration Act which, it said, indicate that the liability to pay the charge is not a tax in the Constitutional sense.

…

Fee for services

The plaintiff submits that the statutory imposition of the liability to pay the charge is not a law with respect to taxation because the charge is a fee for services or at least akin to a fee for services. The amount of the charge an employer is liable to pay is an amount which bears a direct relation to the employer's expenditure on employment related training. And the Administration Act permits the charge paid to the Commonwealth to be expended on employment related training. But is the charge so paid a fee for the training on which it is so expended?

As stated earlier, s 34(1) of the Administration Act provides that money in the Fund (which may include money paid to the Commonwealth in discharge of an obligation to pay the charge) 'may be applied for the purposes of … (b) making payments under training guarantee agreements'. Section 35 provides for the making of training guarantee agreements. They are 'agreements … about making payments out of the Fund to [a] State or Territory and the expenditure of those payments, or amounts attributable to those payments, in relation to eligible training programs'. An agreement is of no effect unless the State or Territory agrees 'to ensure that the payments [under the agreement], or amounts attributable to the payments, are expended only in relation to eligible training programs' (s 35(2)(b)(ii)). But the Administration Act imposes no requirement that the State or Territory agree to expend the money paid under an agreement on eligible training programs for those employers who have paid money to the Commonwealth in discharge of an obligation to pay the charge. True it is that the State or Territory must agree that it 'supports the Training Guarantee Scheme' (s 35(2)(a)) and agree to distribute payments made to it under the agreement on the advice of a body containing representatives of the State or Territory, employers and trade unions (s 35(2)(b)(i)). But these requirements fall a long way short of requiring either that the money received be expended on the provision of eligible training programs or that the money received be expended in relation to eligible training programs for those employers who have incurred a liability to pay the charge. There is therefore no statutory warrant for concluding that the charge paid is a fee for services. The Administration Act does not by its terms establish any sufficient relationship between the liability to pay the charge and the provision of employment related training by the ultimate expenditure of the money collected to regard the liability to pay the charge as a fee for services or as something akin to a fee for services.

(Footnotes omitted)."

81. In the present case, there is no suggestion that the exaction effected by the SGC Act coupled with the distribution from the Consolidated Revenue Fund effected by Part 8 of the SGA Act might somehow be regarded as providing a fee for service. Accordingly, in our view, Roy Morgan's argument draws no support from this statement in
Northern Suburbs 176 CLR 555.

82. On behalf of the Attorney-General for the Commonwealth it is submitted that the exaction of funds for payment into the Consolidated Revenue Fund established by s 81 of the Constitution conclusively establishes that the exaction is for public purposes. There is support in authority for that submission. In
Tape Manufacturers 176 CLR 480, Mason CJ, Brennan, Deane and Gaudron JJ said at 503:

"In Australia, the fact that a levy is directed to be paid into the Consolidated Revenue Fund has been regarded as a conclusive indication that the levy is exacted for public purposes.

(Footnote omitted)."

83. In
Tape Manufacturers 176 CLR 480, Dawson and Toohey JJ said at 522-523:

"Under s 81 of the Constitution all revenues or moneys raised or received by the Executive Government of the Commonwealth form one Consolidated Revenue Fund to be appropriated for the purposes of the Commonwealth. If an exaction is a tax, the moneys which it raises are revenue and must form part of the Consolidated Revenue Fund by reason of s 81. That is to say, if in the present case the royalty constitutes a tax, the legislative provisions which make it payable to the collecting society to be distributed by it fail for reasons more fundamental than are to be found in s 55 of the Constitution. They fail because the moneys raised must form part of the Consolidated Revenue Fund and can only, under ss 81 and 83 of the Constitution, be received by the collecting society after appropriation by law for the purpose of payment to it.

If these considerations involve practice rather than principle then the observation in Air Caledonie International v The Commonwealth that there is no reason in principle 'why the compulsory exaction of money under statutory powers could not properly be seen as taxation notwithstanding that it was by a non-public authority or for purposes which could not properly be described as public' may stand. But we doubt whether s 81 of the Constitution can in this context be regarded as a machinery provision and, consequently, it now seems to us that the passage which we have cited may be too wide. Read in its widest sense that passage does suggest that any exaction enforceable by law may be a tax in the constitutional sense and that is, as we have said, to regard as dispensable that feature of a tax which is, in truth, indispensable, namely, that the moneys raised be government revenue. Indeed, if all that is required for a tax is that there be an exaction enforceable by law, s 51(ii) assumes unforeseen proportions. Any compulsory exaction of money under statutory power would need no other constitutional warrant.

(Footnotes omitted)"

84. On behalf of Roy Morgan it is said that the authority of the statements in
Tape Manufacturers 176 CLR 480 and
Northern Suburbs 176 CLR 555 to which we have referred must now be seen to be qualified by the decision of the High Court in
Luton 210 CLR 333 and the observations by members of the Court in that case. In
Luton 210 CLR 333, the High Court held that the Commonwealth child support scheme established by the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1989 (Cth) could not be supported as an exercise of the constitutional power to make laws with respect to taxation. That legislation provided for debt for child support owed to a carer to be replaced by an obligation on the debtor to pay the debt to the Commonwealth with the Commonwealth making payments to the carer equivalent to amounts recovered from the child support debtor. The statutory replacement of a private debt obligation with a debt to the Commonwealth caused the Court to hold that the exaction was not a tax despite the fact that it was paid into the Consolidated Revenue Fund. Gleeson CJ, with whom McHugh J agreed, said at [13]:

"As was pointed out in Airservices Australia v Canadian Airlines International Ltd, while an objective of raising revenue for the government is not a universal determinant, the presence or absence of such an objective will often be significant in deciding whether an exaction, or the imposition of a liability, bears the character of taxation. That is the most usual form of public purpose involved; an idea reflected in what was said by Quick and Garran. Revenue raised by a government may be earmarked, formally or informally, for a specific purpose, and still be a tax. For example, Commonwealth pay-roll tax was introduced in 1941 as a means of providing revenue to finance the provision of child endowment under legislation enacted in the same year. The impost in the Australian Tape Manufacturers Association Case involved raising revenue from one group for the purpose of its application for the benefit of another group. The majority held that revenue was raised for a public purpose of compensating the second group. The group who were to be compensated had no prior legal right against the group from whom the revenue was to be raised. That is a point of distinction from the Registration and Collection Act. The fact that the proceeds of the exaction were not paid into, and out of, the Consolidated Revenue Fund was not regarded as decisive. I would also regard the converse as true.

(footnotes omitted)"

85. Gleeson CJ went on to explain why the exaction in that case was not for public purposes. At [14]-[17] Gleeson CJ explained:

"The Assessment Act creates a private or personal obligation, in the form of a debt payable by the liable parent to the eligible carer. The debt is recoverable by the carer. The creation of a legal obligation, enforceable by private action, in a parent, to pay for the support of a child, is not taxation. It is a scheme for the creation and adjustment of private rights and liabilities. But the existence of the obligation is of significance in considering the aspect of the legislative scheme upon which the plaintiff principally relies, which is in the Registration and Collection Act. What is alleged to be taxation is in substance no more than a mechanism for the enforcement of a pre-existing private liability.

If a child support assessment is registered under the Registration and Collection Act the debt payable by the liable parent to the eligible carer is extinguished, and replaced by a debt payable by the liable parent to the Commonwealth. The Commonwealth, as necessary, collects the amount owing, and pays it into the Consolidated Revenue Fund. An amount equal to the amount collected is transferred to the Child Support Account. Payments of child support are then made to the carer from the Child Support Account. What is involved is a collection mechanism to facilitate the recovery of child support payments that a parent becomes liable to make under the Assessment Act. It enables the discharge of a personal obligation created by the Assessment Act. A multiplicity of payments may be involved, the amounts of payments are likely to be modest, and many carers would lack the means or the will to undertake private recovery proceedings. The practical advantages of such a scheme are obvious, but they do not include any financial benefit to the Commonwealth.

The payment of moneys collected by the Commonwealth into the Consolidated Revenue Fund, is necessitated by s 81 of the Constitution, which refers to 'revenues or moneys'. The legislation does not have either the purpose or the effect of raising revenue for the Commonwealth. Its purpose is to create, and facilitate the enforcement of, private rights and liabilities. The Assessment Act creates a personal liability in a parent to the carer of a child; the Registration and Collection Act gives the carer the facility, in exchange for extinguishment of the liability to the carer, to have the Commonwealth recover the child support payments assessed and pay an equivalent amount to the carer.

The legislation does not bear the character of taxation.

(Footnotes omitted)"

86. In
Luton 210 CLR 333, Gaudron and Hayne JJ said at [55]:

"The destination of money that is exacted may well be significant in deciding whether it is exacted for public purposes. A requirement that a sum which legislation requires is paid be paid into the Consolidated Revenue Fund does not conclude the issue of characterising the law as one imposing taxation."

87. Their Honours went on to say at [59]-[60]:

"What marks the present exactions apart from other exactions that have been held to be taxes is that in every case the sum exacted under the Registration and Collection Act is, when the maintenance liability is first registered, the amount which otherwise would be due and payable by the payer in satisfaction of an existing obligation owed by that payer to the carer of a child as maintenance for the child.

There is, therefore, under the Registration and Collection Act, more than the mere earmarking of a compulsory exaction for a particular application. Imposing a financial burden on one group in society for the benefit of another group in society will often constitute a tax. Pointing to some identifiable relationship between the group of payers and the group of recipients or even to some relationship between a particular payer and a particular recipient will not usually require some different conclusion. Under the Registration and Collection Act, however, the obligation to make a payment to the carer of the child is replaced by the obligation to pay the same amount to the Commonwealth. That obligation is coupled with the creation of a new right in the carer to have the Commonwealth pay the carer whatever the payer thereafter gives up - whether by making a payment to the Commonwealth or by suffering a compulsory deduction from salary or wages. The combination of these features - the substitution of a new obligation to the Commonwealth equal to an existing obligation which is terminated, coupled with the substitution of new rights in the carer against the Commonwealth equal to the extent to which the payer performs his or her obligation to the Commonwealth - takes this compulsory exaction outside the description of 'taxation'."

88. Callinan J said of the two Acts there under consideration at [177]-[179]:

"Their purpose is not to raise revenue for the Commonwealth. The scheme does not contemplate any net benefit to the Commonwealth. The scheme does not confer any direct benefit upon the general community. It does not seek to exact money from the community. It may apply to, and require deductions from a social security pension or benefit payable by the Government (s 72AA of the Collection Act), features which hardly give the scheme the appearance of one for the exaction of a tax. The beneficiaries of the scheme are of a limited class: children whose parents or parents would seek to avoid their moral and legal obligations owed to them. The Collection Act extinguishes the debt payable pursuant to the Assessment Act by a liable parent to an eligible carer: it creates a debt payable by a liable parent to the Commonwealth. And, it is important to note, s 76 of the Collection Act confers rights to payment upon an eligible carer of an equivalent amount by the Commonwealth. The result that the Collection Act is intended to achieve, and the means by which it is achieved, have some similarity to what happens when a creditor assigns a debt to another. As a result of the operation of the Acts, the Commonwealth becomes the substitute creditor, for and on behalf of the eligible carer, a situation no doubt very acceptable for the eligible carer and, accordingly of a kind to which a creditor (carer) would be likely to wish to assent.

These aspects of the scheme would be immediately sufficient to put beyond doubt any question that it is not one for the exaction of a tax but for the recent decision of this Court in Australian Tape Manufacturers Association Ltd v The Commonwealth. There, amounts of royalties were paid in the first instance by purchasers of blank recording tapes to a collecting society, to be held in a fund for the benefit of copyright owners who were members of the society. The Court was narrowly divided as to the characterisation of the legislative scheme there. It was held in that case that the royalty was imposed for a 'public purpose', namely the compensation of relevant copyright holders. If a purpose of compensating copyright holders is a public purpose, it is not immediately apparent why a purpose of ensuring that child carers receive maintenance for children, should not also be so regarded. The majority there (Mason CJ, Brennan, Deane and Gaudron JJ) regarded the relevant enactment as one for the exaction of money from one group for redistribution for the benefit of another group, with a view to bringing about what was seen to be an equitable outcome. There was no necessary correspondence between a copyright holder and the purchaser of a blank tape, who might not even use the tape to copy copyright material. By contrast, the amounts payable under this scheme are paid to the Commonwealth by a particular debtor in relation to a particular child or children, and an equivalent amount is paid to the particular person entitled to that amount of child support. It is this feature which makes Australian Tape Manufacturers distinguishable and it is unnecessary to consider the Commonwealth's submission that it should be permitted to reopen that case to argue that the correct approach was the minority's (Dawson, Toohey and McHugh JJ).

Some further reference to Air Caledonie is however useful, although in this field of discourse, of high moral, social and, in modern times, legal obligations owed to children by parents, and the designing of provisions for an effective means of discharging those obligations, not all of the language used in cases concerned with the payment of money to the Commonwealth by income earners and commercial enterprises has a necessary application. Here, unlike in Air Caledonie, this scheme does not involve an exaction by a public authority for a public purpose of the kind discussed in that case. A person assessed under this scheme may have no ultimate choice but to pay the assessment to the Commonwealth, but the compulsion to pay only arises, if, and only if, the payer has not otherwise discharged the obligation that a parent owes to his or her child or children. It is parenthood that is, and continues to be the source of the obligation. There is a clear connection between what is payable and what is received in return for it. What is payable is the value of reasonable child support. What is received in return for it, is a discharge of the liability that the parent owes to the child.

(Emphasis added)."

89. The observations by the members of the Court in
Luton 210 CLR 333 to which we have referred make it clear the exaction for payment into the Consolidated Revenue Fund was not decisive in favour of a positive answer to the question whether the exaction was for public purposes because the countervailing indication was compelling. That countervailing indication was that the exaction involved the statutory replacement of a private obligation in the debtor to make a payment to the carer of a child by an obligation on the debtor to pay the same amount to the Commonwealth together with the creation of a new right in the carer to have the Commonwealth pay the carer whatever the debtor thereafter yields up to the Commonwealth in discharge of his or her obligation.

90. On Roy Morgan's behalf it is said that it is the close correspondence between the amounts paid to the Commissioner (as the aggregate of individual superannuation shortfalls) and the amount paid out by way of the shortfall component in respect of each employer that establishes the "private" nature of the SC Charge. In this regard, it is argued, paraphrasing the highlighted passage from the reasons of Callinan J in
Luton 210 CLR 333 set out above:

"…the amounts payable under this scheme are paid to the Commonwealth by a particular [employer] in relation to a particular [employee or employees] and an equivalent amount is paid to the particular [employee] entitled to that amount of [superannuation benefit]. It is this feature which makes Australian Tape Manufacturers distinguishable …"

91. This paraphrase does not accurately state the effect of the relevant passage from the reasons of Callinan J in two respects. First, Roy Morgan substitutes "[employer]" for the word "debtor" in the reasons of Callinan J. This is important in that Callinan J proceeds explicitly on the footing that the legislation there in question fixed upon a person who was already a "debtor", ie, a person who was already under a private obligation, and then purported to provide for an exaction to acquit that obligation. Secondly, the paraphrase does not accurately state the effect of Part 8 of the SGA Act in that s 65 does not provide for a payment of the amount of superannuation benefit directly to an employee. Rather, s 65 provides for payment to a fund to be held against the invalidity or old age of the employee.

92. Nothing in the reasoning of any member of the High Court in
Luton 210 CLR 333 casts doubt on the decisions or the reasoning in
Northern Suburbs 176 CLR 555 or
Tape Manufacturers 176 CLR 480. The circumstance that the moneys exacted are paid into the Consolidated Revenue Fund in conformity with s 71 of the SGA Act establishes, in the absence of a countervailing consideration, that the exaction effected by s 5 of the SGC Act is for public purposes. The SGA Act and SGC Act do not operate to substitute a new statutory obligation for a pre-existing private obligation in an employer to make a payment to any employee. Rather, the legislation exacts a payment from an employer; and that payment is paid to the Consolidated Revenue Fund. While payments from the Consolidated Revenue Fund pursuant to s 65 of the SGA Act are made by the Commissioner for the ultimate benefit of individual employees, that benefit is only received by an individual employee in the event of infirmity or retirement.

93. In our opinion, the exaction imposed by the SGC Act and the SGA Act is for public purposes. That conclusion is supported by Tape Manufacturers 176 CLR 480 and Northern Suburbs 176 CLR 555 and is consistent with Luton 210 CLR 333.

94. Accordingly, we conclude that the SG charge is a tax within s 51(ii) of the Constitution.

Roy Morgan's challenge to Part 8 of the SGA Act

95. Roy Morgan's answer to the Attorney-General's contention that it does not have standing to challenge the validity of Part 8 of the SGA Act is that Part 8 of the SGA Act is an inseverable part of the legislative scheme constituted by the SGC Act and the SGA Act, and that if the SGC Act is invalid, the SGA Act also falls. Essential to this argument is the proposition that the SGC is stamped with a trust when received into the Consolidated Revenue Fund to be paid out pursuant to the provisions of Part 8 for the benefit of an individual employee. That proposition is untenable: it is not supported by any provision of the SGC Act or SGA Act. Generally speaking, the validity of an Act imposing taxation does not depend on the validity of an associated law providing for the expenditure of the moneys so raised. If the spending provision is invalid, the moneys raised pursuant to the taxing Act are available for appropriation from the Consolidated Revenue Fund for other public purposes. In the
First Uniform Tax Case, South Australia v The Commonwealth (1942) 65 CLR 373, Latham CJ said at 415:

"But, even if it can be assumed that an appropriation can be invalid (as here contended with reference to the Grants Act), such invalidity cannot reflect back upon any tax Act so as to make it invalid. Commonwealth Government receipts consist of proceeds of taxation and loans and of payments for services, and they all go into one fund (Constitution, sec 81). Suppose the Commonwealth Government were, under invalid legislation, or without any pretended legislative justification, to make a payment of one million pounds or one thousand pounds to a person who had no right to receive it. Can it be contended that because the payment might have been made out of receipts from income tax that therefore the income-tax laws of the Commonwealth are invalid? The argument might with equal force be applied to the customs tariff, or the Estate Duties Act, or the Land Tax Act, or to any Act which brings in the money some of which has been or may have been unlawfully expended. It is impossible to accept a contention the necessary result of which, if logically applied, would be that any unauthorized expenditure of Commonwealth money would invalidate all the Acts under or by virtue of which moneys come into the consolidated revenue. Thus the objections made to the Tax Act specifically must be held to fail."

96. It is also to be noted that s 15A of the Acts Interpretation Act 1901 (Cth) provides:

"Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power."

97. Insofar as a substantial purpose of the SGC Act is to give employers an incentive to make superannuation contributions to their employers that purpose would not be defeated if Part 8 of the SGA Act were invalid. That being so, s 15A of the Acts Interpretation Act serves to preserve the validity of the SGC Act and the balance of the SGA Act apart from Part 8: see
Re Nolan; Ex parte Young (1991) 172 CLR 460 at 485;
Victoria v The Commonwealth (1996) 187 CLR 416 at 502;
R v Hughes (2000) 202 CLR 535 at [42]-[44].

98. On the basis that the question of severability and hence Roy Morgan's standing to challenge the validity of Part 8 of the SGA Act can be resolved against Roy Morgan without determining that Part 8 of the SGA Act is valid, there is no occasion for this Court to determine whether Part 8 of the SGA Act is, in truth, valid. But recognising the possibility that we may be wrong in our conclusion on the severability issue, it seems desirable to explain briefly the reasons which lead us to the view that Part 8 of the SGA Act is supported by at least one head of Commonwealth legislative power. It is sufficient, in our view, to refer to the power with respect to invalid and old age pensions.

The pension power

99. Section 51(xxiii) of the Constitution provides that:

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

… invalid and old-age pensions."

100. The SGC Act and the SGA Act establish a scheme whereby funds are to be made available for the material support of employees in their invalidity or old age. The legislation is, therefore, properly characterised as a law with respect to "invalid and old-age pensions".

101. To read s 51(xxiii) of the Constitution as if it conferred on the Parliament power to legislate with respect to "invalid and old-age pensions provided by the Commonwealth " is to import into this provision of the Constitution words of limitation which are simply not there. To accept Roy Morgan's submission on this point would be to confine the legislative power of the Commonwealth in a way for which there is no warrant in the text of the Constitution. The submission made on behalf of Roy Morgan must be rejected: it is contrary to the settled approach to the construction of constitutional grants of legislative power, whereby a grant of power should be given effect "with all the generality which the words used admit": see
Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at [16] quoting R v Public Vehicles Licensing Appeal Tribunal (Tas);
ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225-226.

102. Roy Morgan contends that, by analogy with s 51(xxiiiA) of the Constitution, s 51 (xxiii) only provides for invalid and old-age pensions provided by the Commonwealth.

103. The obvious difficulty with the analogy is that s 51(xxiii) is cast in terms quite different from s 51(xxiiiA). Section 51(xxiiiA) is in the following terms:

"the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;"

104. That the benefits referred to in s 51(xxiiiA) must be provided by the Commonwealth can easily be seen to be implicit in the phrase "the provision of" which does not appear in s 51(xxiii). On Roy Morgan's behalf, however, it is said that the same limitation is implicit in s 51(xxiii) by reason of the character of the benefits (which were historically the province of governments), the history of s 51(xxiiiA) and its collocation with s 51(xxiii). This argument is said to draw support from the observations of Dixon J in
British Medical Association v The Commonwealth (1949) 79 CLR 207 at 260-261.

"The introductory expression in par (xxiiA) 'the provision of,' governed as it is by the words 'with respect to,' might conceivably be read as giving a power to legislate about the providing of the allowances, benefits and services to which the paragraph refers whoever did the providing. If it were read thus it would extend to legislation dealing directly and substantially and not merely incidentally, with provisions made by State Governments, public bodies, voluntary associations, trading companies and private persons for any of the purposes enumerated, however limited the application of the provision. It would follow that these governments, bodies and persons might, by legislation under the power, be compelled to make such provision in accordance with whatever obligations the Parliament thought fit to impose upon them. But I am clearly of opinion that this is not the true meaning of the words 'with respect to the provision of.' The purpose of the constitutional amendment was to enable the Commonwealth to provide the pensions allowances endowments benefits and services which par (xxiiiA) mentions. That is shown by the character of the things for the provision of which laws may be made, which are recognized social services the establishment of which is now considered to be within the province of government. The conclusion is confirmed by the history of the matter; and it is supported by the placing of the new paragraph after s 51(xxiii), which deals with invalid and old age pensions. The meaning appears to me to be the same as if the power had been expressed as one to make laws to provide &c. It might have been so expressed had it not been for the words 'in respect of' at the head of the section. These words made the use of a substantive or verbal noun necessary and doubtless this accounts for the choice of the words 'the provision.' But to say that the meaning is the same as if the power had been one to provide the benefits &c. enumerated is not to restrict the Commonwealth to providing them directly and at the expense of the Treasury. The power perhaps might, for example, cover the establishment of contributory schemes; and it would cover the provision of benefits &c. through separate bodies set up for the purpose."

105. A consideration of this passage shows that it affords no support at all to the argument advanced on behalf of Roy Morgan. These observations of Dixon J cannot be understood as suggesting that s 51(xxiii) should be read as if it empowered only the making of laws "for the provision of invalid and old age pensions." They afford no reason to read s 51(xxiii) as subject to the implied limitation advanced by Roy Morgan.

106. On behalf of Roy Morgan particular emphasis was placed on the following passage from the reasons of the High Court in
Alexandria Private Geriatric Hospital Pty Ltd v The Commonwealth (1987) 162 CLR 271 at 282 where, in relation to s 51(xxiiA) of the Constitution, it was said:

"The Parliament having resolved to legislate with respect to the provision of sickness and hospital benefits to patients in nursing homes, some kind of scheme was essential to ensure both that the provision would be effective in meeting the needs of such patients and capable of being held within reasonable budgetary limits. If it be accepted, as the plaintiffs accept, that the Parliament could legislate for the establishment of Commonwealth hospitals to provide nursing home care directly to patients in need of such care, there can be no objection to it adopting what Smithers J described as 'a private enterprise approach to the problem' (Howells v Nagrad Nominees Pty Ltd) by inviting proprietors of private nursing homes voluntarily to undertake to provide the necessary services in return for a government subsidy.

(footnotes omitted)"

107. On behalf of Roy Morgan it was argued, once again relying upon the suggested analogy between s 51(xxiiiA) and s 51(xxiii), that s 51(xxiii) cannot support a law which conscripts a person to provide a private pension to that person's employees. Roy Morgan argues that this is what s 65(1) of the SGA Act does.

108. As will be apparent from what we have written we do not accept that the analogy is apt, and even if it were, the invalidity of Part 8 of the SGA Act would not spell invalidity for the SGC Act. In any event, it is not appropriate to speak of the SGC Act and the SGA Act as creating a species of civil conscription. In this regard, in
Wong v The Commonwealth (2009) 236 CLR 573 at [209] Hayne, Crennan and Kiefel JJ said:

"Contrary to the appellants' submissions, however, to observe that there is a practical compulsion to participate in the Medicare scheme does not conclude whether the impugned provisions of the Health Insurance Act provide for a form of civil conscription. In answering that question, it is necessary to begin by noticing what the impugned provisions do not compel, either legally or practically. The impugned provisions do not compel, legally or practically, a medical practitioner to perform any service, whether on behalf of the Commonwealth or at all. They do not compel, legally or practically, a medical practitioner to treat or not treat any particular patient or group of patients. The impugned provisions do not, in the words of Dixon J in the BMA Case, provide for 'compulsory service' or 'the compulsory performance of a service or services'. The impugned provisions do not, in the terms used in the Commonwealth's argument in the General Practitioners Case, direct any statutory compulsion to a doctor. There is no compulsion to do any service. A doctor can treat or not treat a patient. There is no compulsion to service analogous to military conscription. And there is neither a legal nor a practical compulsion, in the words of Aickin J in the General Practitioners Case, 'to perform particular medical … services, or to perform medical … services at a particular place, or to perform such services only as an employee of the Commonwealth'.

(footnotes omitted)"

109. The provisions of the SGA Act and the SGC Act do not compel any employer to perform any service on behalf of the Commonwealth: indeed, there is no compulsion on an employer to perform any service at all.

110. For these reasons we conclude that Roy Morgan's constitutional challenge to the SGC Act and the SGA Act fails.

Orders

111. The appeal should be dismissed.

112. Roy Morgan should pay the Commissioner's costs. We note that the Attorney-General seeks no order in relation to the costs of the appeal.