The Interpretation and Application of Section 55 of the Constitution

Sections 53 and 55 of the Commonwealth Constitution form the basis of the political compromise that seeks to balance the interests of responsible government against federalism. Section 53 limits the powers of the Senate with respect to laws imposing taxation, while s 55 protects the Senate from the exploitation of this limitation. While s 53 was left to the Houses to apply, a breach of s 55 renders certain provisions of Commonwealth laws to be of no effect. This makes clarity about the interpretation and application of s 55 critical. This article addresses three areas in which this clarity is lacking - (1) whether s 55 applies to the making of delegated legislation; (2) whether provisions that set or increase the rate of taxation are laws "imposing taxation" for the purposes of s 55; and (3) whether s 55 applies to Commonwealth laws which provide for the imposition of taxation in a territory.