The current claim

Despite repeated calls to scrap the GST on tampons, the tax remains in place nearly 18 years after it was introduced.

During that time, politicians from both sides have claimed that no change to the GST on tampons can be made without the agreement of all state and territory governments.

Most recently Foreign Minister Julie Bishop repeated this claim on Channel Nine.

Asked whether the Government would scrap the tax as Labor is currently promising to do, Ms Bishop said: "Any change to the GST must be agreed by each state and territory government, and there is no agreement from the states and territories on this issue."

Fact Check has already tested similar claims and found them to be misleading.

Ultimately, despite the existence of an agreement that requires unanimous support for a change from state and territory governments, the only factor preventing the Government from removing the GST on tampons is a potential political backlash, not a legal roadblock.

Previous claims

Nearly two years ago, Opposition Leader Bill Shorten said Labor could not scrap the GST on tampons if elected, without having the states and territories on board.

"In terms of the GST on tampons, in an ideal world we would scrap that. But in order to do that you have to get the concurrence of state premiers," Mr Shorten told a press conference on June 10, 2016.

A year earlier, then prime minister Tony Abbott and then treasurer Joe Hockey made similar statements

In response to a question from Mr Shorten in the House of Representatives in May, 2015 about removing the GST on tampons, Mr Abbott said: "As the Leader of the Opposition well knows, the GST is a tax which is imposed for the states. It is spent by the states. Changes to the GST are absolutely a matter for the states and territories."

A day earlier Mr Hockey had told ABC's Q&A: "I'd need the agreement of the states ... I will give you this undertaking: I will raise it with the states at the next meeting of the treasurers in July."

Why these claims are misleading

Fact Check has already tested claims on whether state assent would be needed to change the GST and found them to be misleading.

Fact Check examined the GST Act 1999, as well as the agreement made with the states in 1998, and consulted experts to determine whether the assent of the states is required to change the GST.

The act states: "The Parliament acknowledges that the Commonwealth will maintain the rate and base of the GST in accordance with the Agreement on Principles for the Reform of Commonwealth-State Financial Relations endorsed at the Special Premiers' Conference in Canberra on 13 November 1998."

Part 3 of the agreement concurs:

"Subject to clauses 34, 35 and 36 of this Agreement, after the introduction of the GST, any proposal to vary the GST base will require: the unanimous support of the State and Territory Governments; the endorsement by the Commonwealth Government of the day; and the passage of relevant legislation by both Houses of the Commonwealth Parliament."

However, as Fact Check has pointed out before, published expert legal opinion found that despite the provisions in the agreement, the agreement is judicially unenforceable.

Before the 2013 federal election, The Australian newspaper commissioned legal opinion on this issue from Bret Walker SC, and A.D. Lang, who determined that the GST act and the premiers' agreement could not stop the Federal Government from altering the rate of the GST in the absence of state and territory consensus.

"The GST intergovernmental agreement is, we think, a prime example of the kind of political compact enforceable (so to speak) only by political sanctions ultimately at the hands of the electors. It follows that it is not truly legally i.e. judicially enforceable at all: for a court to venture on that course would be, as Sir Owen Dixon put it, to extend the court's 'true function into a domain that does not belong to it'," the legal opinion said.

Sorry, this video has expired Archival footage of a protest against cabinet ministers in 2000 shows early opposition to having the GST applied to women's sanitary items

Legal academics have previously told Fact Check that legislation cannot not be used to bind a future parliament.

Anne Twomey, from the University of Sydney Law School said: "The GST legislation can be amended at any time by the Commonwealth Parliament by ordinary majorities in each house. Although it says that the states must agree to changes in the rate and base of the GST, this can simply be amended or repealed by ordinary Commonwealth legislation."

"This is because the Commonwealth Parliament cannot abdicate its legislative power. The Constitution gives the Commonwealth Parliament its power to enact tax laws and only an amendment to the Constitution could limit or take that power away."

Professor Twomey said despite it being a relatively straightforward legislative change, it would certainly be difficult politically.

"Even though the requirement for the states to give their consent is not legally binding, it still has political and moral force. The states knew perfectly well at the time this legislation was enacted that the requirement for their consent to changes in the rate and base of the GST was not legally effective — just politically and morally," she said.

"Similarly, the inter-governmental agreements that underlie the GST are not legally binding contracts. But they are still political agreements which need to be adhered to so that all parties to the federation can trust each other and co-operate in the future."

George Williams from UNSW previously told Fact Check: "The act requires their consent, but there's nothing to stop Parliament changing the act to remove that requirement. It's a self-imposed requirement that can be easily disposed of by way of an amendment. There is no doubt that federal Parliament can therefore make the change unilaterally if it desires to do so."

Ultimately, Fact Check found that the only factor truly preventing the Government from removing the GST on tampons was a potential political backlash, not a legal roadblock.

RMIT ABC Fact Check finds Ms Bishop's claim is as misleading as the claims made by Mr Shorten, Mr Abbott and Mr Hockey.

The claim that the GST on tampons cannot be removed without the agreement of all states and territories is a debunked claim that, clearly, refuses to die.



