D'Emden V Pedder - Background To The Case

Background To The Case

As with the allocation of powers to the United States Congress under the United States Constitution, the Constitution of Australia grants a selection of specified powers to the Parliament of Australia, while leaving unassigned powers to the various state parliaments. Most of the powers granted to the federal parliament can also be exercised by the state parliaments, though federal laws will prevail in case of inconsistency. This arrangement resulted in dispute in constitutional law circles about whether the federal government could be subject to state laws, and vice versa.

The factual circumstances giving rise to this case began on 31 March 1903 when Henry D'Emden, who was employed by the federal government as the Deputy Postmaster-General for Tasmania, gave a receipt for his salary to a federal official without paying the Tasmanian stamp duty on it. D'Emden was convicted in a Hobart court, and was ordered to pay a one shilling fine and seven shillings and sixpence in costs; when he refused to pay, he was imprisoned in the Hobart jail for seven days' hard labour.

While agreeing that in fact he had not paid the stamp duty, D'Emden argued that at law he was not obliged to pay the state tax, and made the same basic argument in an appeal to the Supreme Court of Tasmania. That appeal was rejected, and D'Emden appealed to the High Court.