The emperors' new fig leaf is fiscal "fortress Australia" (still) constitutionally flaky? Eu-Jin Teo
By: Teo, Eu Jin
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Material type: 
ArticleSubject(s): IMPUESTOS | EXTRANJEROS | TAX RULINGS | LEGISLACION | AUSTRALIA
In:
Australian Tax Forum: a journal of Taxation Policy, Law and Reform v. 40, n. 2, 2025, p. 121-154Summary: The enactment of populist taxes (of varying constitutional validity) that are targeted at aliens is a contemporary phenomenon in a number of countries. This article considers the legality of the additional taxation that many Australian jurisdictions have sought to impose on foreign ownership of Australian property. Such foreigner-specific taxes would appear to be incompatible with expansive non-discrimination clauses contained in a number of international tax agreements to which Australia is a party, clauses that also have the force of Australian federal law. Interestingly, nationals of polities with agreements that have no applicable non-discrimination clauses (such as the United States, the United Kingdom, Canada and China) or those of countries with no relevant tax treaty might (pursuant to Australian constitutional law, notwithstanding the Treasury Laws Amendment (Foreign Investment) Act 2024 (Cth) and related subsequent legislation) also be able to rely on the aforesaid incompatibility for relevant relief. The ramifications of such incompatibility for potential private law actions for money had and received will be canvassed, along with the issues that are raised by the Amendment Act, such as its compatibility with s 109 of the Australian Constitution, questionable retroactivity and likely acquisition of property on other than just terms. This is to say nothing of the pall that the broad shadow of the Racial Discrimination Act 1975 (Cth) may, independently, cast over the practical operation of the taxes in question.
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The enactment of populist taxes (of varying constitutional validity) that are targeted at aliens is a contemporary phenomenon in a number of countries. This article considers the legality of the additional taxation that many Australian jurisdictions have sought to impose on foreign ownership of Australian property. Such foreigner-specific taxes would appear to be incompatible with expansive non-discrimination clauses contained in a number of international tax agreements to which Australia is a party, clauses that also have the force of Australian federal law. Interestingly, nationals of polities with agreements that have no applicable non-discrimination clauses (such as the United States, the United Kingdom, Canada and China) or those of countries with no relevant tax treaty might (pursuant to Australian constitutional law, notwithstanding the Treasury Laws Amendment (Foreign Investment) Act 2024 (Cth) and related subsequent legislation) also be able to rely on the aforesaid incompatibility for relevant relief. The ramifications of such incompatibility for potential private law actions for money had and received will be canvassed, along with the issues that are raised by the Amendment Act, such as its compatibility with s 109 of the Australian Constitution, questionable retroactivity and likely acquisition of property on other than just terms. This is to say nothing of the pall that the broad shadow of the Racial Discrimination Act 1975 (Cth) may, independently, cast over the practical operation of the taxes in question.
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