In 3 related cases, the AAT has confirmed that 3 senior South Australian public servants were personally liable for the superannuation surcharge liability in respect of their “constitutionally protected superannuation funds”. This was despite their claims that, in accordance with the decision of the High Court in Clarke v FCT (2009) 72 ATR 868, they were entitled to implied “immunity” from the surcharge in view of the various positions they occupied at the “highest levels of government” during their careers.
In arriving at its decision the AAT first acknowledged that the Commonwealth cannot significantly impair, control or weaken the capacity of the States to exercise their constitutional power and functions, or their exercise of such power and functions by, for example, imposing such a surcharge on higher level public servants. However, the AAT then found that the taxpayers did not occupy such positions at the highest level of government – except to the extent that they occupied positions of “Executive Director, Cabinet Office, in the Department of the Premier and Cabinet”, “Chief Executive Officer of the Department of Information Industries”, “Acting Chief Executive” and “Director, Office of Year 2000 Compliance” for various periods.
In short, the AAT found that the imposition of the surcharge did not result in a significant curtailment, weakening or burdening of the exercise of the State’s constitutional functioning. Finally, the AAT found, that it had the jurisdiction to hear the matter and was not required to refer the issue of constitutional validity of the surcharge in the circumstances to the Federal Court.
(AAT Case [2012] AATA 451, Re Walsh and FCT; AAT Case [2012] AATA 452, Re Wilson and FCT; AAT Case [2012] AATA 453, Re Bridge and FCT, AAT, Ref Nos 2011/1834-1841, 2011/0268-0272, 2012/0726-0729, Jarvis DP, 18 July 2012.)
[LTN 141, 24/7]