Resource tax botched?

The current impasse between large mining companies and the Gillard government over its proposed resource rent tax looks like yet another example of inept public relations if not worse:

JULIA Gillard says it is “obvious common sense” that higher state mining royalties would not be allowed if Canberra had to foot the bill.

She says that is why only existing state royalty rates or scheduled increases can be deducted from the planned mineral resources rent tax. That certainly was the wording of the original resource super-profits tax announced in May. Otherwise, the Labor government warned, the states could simply raise their royalties, confident that the bill would get sent to Canberra courtesy of the companies’ ability to deduct the cost.

Unfortunately, the Prime Minister’s haste to get a replacement pre-election mining tax deal done with the big three miners in July neglected to repeat this supposedly “obvious” point in writing. Quite the reverse, in fact.

Instead, the announced commitment was that “all state and territory royalties will be creditable against the resources tax liability”. The result is that BHP Billiton, Rio Tinto and Xstrata believe that Canberra’s sudden public use of adjectives such as “existing and scheduled” to temper this guarantee is reneging on the deal.

Apart from Gillard’s point, it looks like part of the reason why she and Martin Ferguson are backpedalling furiously is the concern that the resource tax as negotiated might be unconstitutional.   The problem stems from section 51(ii) of the Commonwealth Constitution which gives Parliament the power to enact laws with respect to “taxation; but so as not to discriminate between States or parts of States“.

It’s that last bit that creates the potential problem.  Because different States have different rates of existing mineral royalty taxes, the obvious way to equalise the situation is for the resource tax law to provide for differential rebates to mining companies depending on the State regime under which a mine is operating.  However that might well breach section 51(ii).  In Cameron v Deputy Federal Commissioner of Taxation in 1923 Justice Starke explained the position succinctly:

A law with respect to taxation applicable to all States and parts of States alike does not infringe the Constitution merely because it operates unequally in the different States—not from anything done by the law-making authority, but on account of the inequality of conditions obtaining in the respective States. On the contrary, a law with respect to taxation which takes as its line of demarcation the boundaries of States or parts of States necessarily discriminates between them, and gives a preference to one State or part thereof over another State or part thereof .

The problem is potentially compounded if States later increase their rates of mineral royalties (as Gillard and Ferguson not unreasonably fear), because rebates under the Commonwealth tax would then need to be altered to keep the overall position equal.

However, the solution to both problems seems (to me anyway) fairly straightforward, in constitutional if not political terms.  The constitutional prohibition on discrimination between States and parts of States applies to Commonwealth taxes but not to grants back to the States under section 96 of the Constitution.  They can be as discriminatory as the Commonwealth likes and often are.  In fact the entire system of GST revenue distribution back to the States by the Commonwealth Grants Commission is designedly discriminatory in order to roughly equalise the States’ respective capacities to provide government services.  I don’t see any obvious reason why the Commonwealth could not equalise the combined impact of its resource rent tax with State mineral royalties by making differential tied grants back to the States in an amount equal to each State’s existing mineral royalties, with a grant condition requiring the money to be remitted straight to the mining companies in amounts equal to the state mineral royalties they are liable to pay each year.

The evident risk of the States “free riding” on any ongoing Commonwealth promise to indemnify the mining companies for all State mineral royalties, by subsequently increasing those royalties, could be effectively dealt with by making it clear to the States that their future Commonwealth grant funding would be reduced by the same amount as any increase in a State’s mineral royalties rates.

One would hope they’re working on a solution along these lines.  It seems unlikely that the Gillard government would long survive a renewal of the mining companies’ PR war against the Rudd government “super tax”.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Paul Frijters
Paul Frijters
11 years ago

The overall differential subsidy you are proposing here wouldnt change the taxes faced by the mining companies, merely the incentives for states to increase royalty rates.

On the substantive issues, it is not clear to me that under the negotiated low-tax deal it would actually be worth it for the commonwealth to be the guardian of low royalty rates. That would make the government a cheap enforcement agency of the material interests of the mining companies. Letting the states add on their own additional taxes might not be such a bad idea at all from the point of view of the common good (i.e. from the point of view that the optimal tax levels are much higher than they are at present).

I am intruiged by your line that ‘It seems unlikely that the Gillard government would long survive a renewal of the mining companies’ PR war against the Rudd government “super tax”.’

Are you saying the government of Australia is now effectively held to ransom by the whims of a few mining executives?

Tel
Tel
11 years ago

It is such great fun to duck and weave around the obvious intent of the constitution by finding trixie loopholes in the wording. Anything to avoid the need to actually do what we are supposed to do.

But, the federal government has already been discriminatory by taking away the mining royalties (or course they didn’t actually take away the royalties, they just ripped it back out of GST redistribution which just happens to be exactly the same thing). The result is that the states have no incentive to price the rate of royalties in order to maximise return because they know it will be stolen from them anyhow. Look what happens when you try to cheat the original design! Unsurprisingly, the incentive-destroying consequence of wealth distribution systematically applies at all levels (even within governments).

We are now at the stage of deciding whether we are going to have federal powers limited in any way whatsoever, or whether we are basically going to set on a path for abolishing the states. Let’s not hedge around playing the game of who has the cleverest argument for manipulating the most important document in Australia, let’s actually have the debate about whether we want states or not.

Personally, I believe that a tiered, hierarchical system is better, providing that: there is clear distinction of responsibilities, and there is a consistent principle of powers being directly linked with responsibility for outcome (i.e. if you have the power to change the outcome, then you are held responsible for what that outcome is). Power without responsibility is a disaster, responsibility without power is just a shrug and throw hands in the air.

Tel
Tel
11 years ago

The evident risk of the States “free riding” on any ongoing Commonwealth promise to indemnify the mining companies for all State mineral royalties, by subsequently increasing those royalties, could be effectively dealt with by making it clear to the States that their future Commonwealth grant funding would be reduced by the same amount as any increase in a State’s mineral royalties rates.

Not that I think it’s likely, but while we are in the mood for silly buggers… there’s a brinkmanship game where a state like WA just keeps winding up their royalties every quarter to watch the feds pay it back to the mining companies. The state has no ceiling on such behaviour, oh but the Commonwealth does have a ceiling. How much fun would that be?

Patrick
Patrick
11 years ago

I dunno Paul, how did you think Julia got there in the first place?

Paul Frijters
Paul Frijters
11 years ago

Patrick,

I believe, mainly based on what I have read on the blogs afterwards, that Julia got there because so many people hated Rudd’s guts for reasons that had nothing to do with policy or even economic interests. Indeed, electorally speaking it was against the interests of the people who voted her in! Though I have no doubt that economic interests play their role in the factional in-fighting of the Labor Party, I understand Julia had the upper hand in the internal votes way before any mention of the mining tax.

Alphonse
Alphonse
11 years ago

Now that the election is over, it’s time to return to the original Rudd version if the miners can’t hack the compromised Gillard one.

Taxation is a largely zero sum game – what’s bad for mining companies is good from pretty much everyone else.

Gavin R. Putland
11 years ago

Why not refund the federal tax collected from each mine back to the State in which the mine is located, on the condition that the State abolishes royalties? And why not abolish the existing corporate income tax while we’re at it? Of course the new federal tax on economic rent would need to be beefed up; cf. my submission on behalf of Prosper Australia.

James A
James A
11 years ago

Tel: +1 on all points. Why can’t we have a national discussion on updating the constitution to deal with the changes of the last 100 years? The UK has an advantage in its unwritten constitution evolves as time goes by.