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31 May 10 Constitutional challenge to Super Guarantee fails - Roy Morgan

The Full Federal Court (Keane CJ, Sundberg and Kenny JJ) has dismissed the taxpayer's appeal from a decision of the AAT, which had held that the taxpayer's interviewers were "employees" for the purposes of s 12 of the Superannuation Guarantee (Administration) Act 1992.

The Court found no error of law in the AAT's decision that the interviewers were "employees', both within the ordinary meaning of that word as used in s 12(1), and by reason of the extended definition in s 12(3) (which deems a person who works under a contract that is wholly or principally for the labour of the person to be an employee).

In the alternative, the taxpayer sought to raise, on appeal, an argument not raised before the AAT, namely, that the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Guarantee Charge Act 1992 are constitutionally invalid. This argument was also rejected by the Court, on the basis that the superannuation guarantee charge is a tax within s 51(ii) of the Constitution of the Commonwealth of Australia.

Roy Morgan Research Pty Ltd v FCT [2010] FCAFC 52 (Full Federal Court; Keane CJ, Sundberg and Kenny JJ; 26 May 2010).


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