Constitutionalism, federalism and reform? Pape v Commissioner of Taxation & Anor: a conversation with Bryan Pape

Abstract

On 18 February 2009 the Tax Bonus for Working Australians Act (No 2) came into force, providing that the Commissioner of Taxation pay a tax bonus to eligible Australian citizens – amounting to $7.7 billion for 8.7 million taxpayers – as part of the Rudd Government’s three-pronged $42 billion Nation Building and Jobs Plan designed to ameliorate the impact of the 2008-09 global economic retraction. The validity of the Act was challenged by Bryan Pape, Senior Lecturer in Law in the University of New England. On 3 April 2009 a majority ruled that the Act was valid but in doing so said the Court’s reasons would be published at a later date. The majority was revealed to be a 4: 3 decision when the reasons were published on 7 July 2009. In this conversation with Bryan Pape, this paper explores the reasons of the judges and their implications. While the case can be read as demonstrative of the political division between conservative federalists and progressive centralists, we suggest that the case invokes revisiting of the nature of Australian federalism.