The plaintiffs were charged under the Business Franchise Licences (Tobacco) Act 1987 (NSW) with selling tobacco in 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.
Decisionedit
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 Chicory Marketing Board (Vic).[2] 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.
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.[5] The minority saw an excise as specifically a tax on the local manufacture or production of goods.
Winterton, G. et al. Australian federal constitutional law: commentary and materials, 1999. LBC Information Services, Sydney.
February 11, 2024
south, wales, this, article, includes, list, general, references, lacks, sufficient, corresponding, inline, citations, please, help, improve, this, article, introducing, more, precise, citations, november, 2017, learn, when, remove, this, template, message, hi. This article includes a list of general references but it lacks sufficient corresponding inline citations Please help to improve this article by introducing more precise citations November 2017 Learn how and when to remove this template message Ha v New South Wales 1 is a High Court of Australia case that dealt with section 90 of the Australian Constitution which prohibits States from levying excise Ha v New South WalesCourtHigh Court of AustraliaFull case nameHa amp anor v State of New South Wales amp OrsDecided5 August 1997Citation s 1997 HCA 34 1997 189 CLR 465Court membershipJudge s sittingBrennan CJ Dawson Toohey Gaudron McHugh Gummow and Kirby JJCase opinions 4 3 The Court adopted a broad view of an excise in relation to section 90 per Brennan CJ McHugh Gummow and Kirby JJ Laws appliedThis case overturned a previous rulingPeterswald v Bartley 1904 HCA 21 1904 1 CLR 497 Contents 1 Facts 2 Decision 3 See also 4 ReferencesFacts editThe plaintiffs were charged under the Business Franchise Licences Tobacco Act 1987 NSW with selling tobacco in 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 editA 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 Chicory Marketing Board Vic 2 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 3 and Dickenson s Arcade Pty Ltd v Tasmania 4 because the period of backdating two months instead of six 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 5 The minority saw an excise as specifically a tax on the local manufacture or production of goods See also editSection 90 of the Constitution of Australia Australian constitutional lawReferences edit Ha v NSW 1997 HCA 34 1997 189 CLR 465 5 August 1997 High Court Matthews v Chicory Marketing Board Vic 1938 HCA 38 1938 80 CLR 263 9 August 1938 High Court Dennis Hotels Pty Ltd v Victoria 1960 HCA 10 1960 104 CLR 529 26 February 1960 High Court Dickenson s Arcade Pty Ltd v Tasmania 1974 HCA 9 1974 130 CLR 177 1 April 1974 High Court Parton v Milk Board Vic 1949 HCA 67 1949 80 CLR 229 21 December 1949 High Court Winterton G et al Australian federal constitutional law commentary and materials 1999 LBC Information Services Sydney Retrieved from https en wikipedia org w index php title Ha v New South Wales amp oldid 1101623969, wikipedia, wiki, book, books, library,
