Ha v New South Wales
Encyclopedia
Ha v New South Wales 189 CLR
465 is a High Court of Australia
case that dealt with section 90 of the Australian Constitution
, which prohibits States from levying excise
.
without a licence. The Act provided for a licence fee, which consisted of a fixed amount, plus an amount calculated by reference to the value of tobacco sold during the 'relevant period'. The 'relevant period' was defined as 'the month commencing 2 months before the commencement of the month in which the licence expires'. The plaintiffs argued that the licence fee imposed by the Act was an excise and hence invalid due to section 90 of the Constitution.
. They ruled an excise was a tax on sale, production and manufacture of goods prior to consumption, applying to goods whether produced locally or not. Excises could apply to any step in dealing with the goods. The Court viewed the scheme as purely about revenue raising without a discernible regulatory element, giving it the appearance of a tax. Under this broad view, the 'licence fee' imposed by the state government was in fact an excise, which Australian states are constitutionally barred from imposing.
The Court distinguished the decision from the earlier franchise fee cases (Dennis Hotels Pty Ltd v Victoria
and Dickenson's Arcade Pty Ltd v Tasmania
) because the period of backdating (2 months instead of 6) and the backdating mechanism were sufficiently different.
Ha also featured a strong dissent, with the minority of the Court (Dawson, Toohey and Gaudron JJ) adopting the traditional narrow view of an excise. They rejected the Parton v Milk Board (Vic)
excise definition. The minority saw an excise as specifically a tax on the local manufacture or production of goods.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
465 is a High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
case that dealt with section 90 of the Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, which prohibits States from levying excise
Excise
Excise tax in the United States is a indirect tax on listed items. Excise taxes can be and are made by federal, state and local governments and are far from uniform throughout the United States...
.
Facts
The plaintiffs were charged under the Business Franchise Licences (Tobacco) Act 1987 (NSW) with selling tobacco in New South WalesNew South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
without a licence. The Act provided for a licence fee, which consisted of a fixed amount, plus an amount calculated by reference to the value of tobacco sold during the 'relevant period'. The 'relevant period' was defined as 'the month commencing 2 months before the commencement of the month in which the licence expires'. The plaintiffs argued that the licence fee imposed by the Act was an excise and hence invalid due to section 90 of the Constitution.
Decision
A slim majority of the Court (Brennan CJ, McHugh, Gummow and Kirby JJ) ruled in favour of the plaintiffs, adopting the broad view of an excise per Matthews v ChicoryMatthews v Chicory Marketing Board (Vic)
Matthews v Chicory Marketing Board 60 CLR 263 is a High Court of Australia case that considered section 90 of the Australian Constitution, which prohibits States from levying excise...
. They ruled an excise was a tax on sale, production and manufacture of goods prior to consumption, applying to goods whether produced locally or not. Excises could apply to any step in dealing with the goods. The Court viewed the scheme as purely about revenue raising without a discernible regulatory element, giving it the appearance of a tax. Under this broad view, the 'licence fee' imposed by the state government was in fact an excise, which Australian states are constitutionally barred from imposing.
The Court distinguished the decision from the earlier franchise fee cases (Dennis Hotels Pty Ltd v Victoria
Dennis Hotels Pty Ltd v Victoria
Dennis Hotels Pty Ltd v Victoria 104 CLR 529 is a High Court of Australia case that deals with section 90 of the Australian Constitution, which prohibits States from levying customs or excise duties...
and Dickenson's Arcade Pty Ltd v Tasmania
Dickenson's Arcade Pty Ltd v Tasmania
Dickenson's Arcade Pty Ltd v Tasmania 130 CLR 177 is a High Court of Australia case that dealt with section 90 of the Australian Constitution....
) because the period of backdating (2 months instead of 6) and the backdating mechanism were sufficiently different.
Ha also featured a strong dissent, with the minority of the Court (Dawson, Toohey and Gaudron JJ) adopting the traditional narrow view of an excise. They rejected the Parton v Milk Board (Vic)
Parton v Milk Board (Vic)
Parton v Milk Board 80 CLR 229 is a High Court of Australia case that dealt with the meaning of excise in relation to section 90 of the Australian Constitution....
excise definition. The minority saw an excise as specifically a tax on the local manufacture or production of goods.