Hostname: page-component-745bb68f8f-kw2vx Total loading time: 0 Render date: 2025-01-30T13:37:04.211Z Has data issue: false hasContentIssue false
  • English
  • Français

The High Court and Section 90 of the Constitution

Published online by Cambridge University Press:  24 January 2025

Michael Coper
Michael Coper*
Affiliation:
Faculty of Law, University of New South Wales
Get access Rights & Permissions [Opens in a new window]

Abstract

Certainty generally is illusion, Holmes once said, and repose is not the destiny of man. Mr Coper vividly illustrates this in relation to the High Court’s exposition of the meaning of “duty of excise” under section 90 of the Constitution, and argues that the Court’s failure to achieve certainty in this area has not been due to a Barwick-led departure from a so-called settled formula, as alleged by some critics, but has rather been the consequence of the inherent limitations of any legalistic approach. Mr Coper then looks to the purposes of section 90 for guidance, but finds a surprising degree of ambiguity surrounding them. The High Court has also referred to the purposes of section 90, but in attempting to achieve certainty without entirely losing sight of those perceived purposes, it has, Mr Coper argues, compromised both objectives. The author concludes by considering how the Court might escape from the present impasse.

Type
Research Article
Information
Federal Law Review , Volume 7 , Issue 1 , March 1976 , pp. 1 - 48
Copyright
Copyright © 1976 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

page 1 note 1 This Part is derived from a paper presented by the author to the Australasian Universities Law Schools Association Government Law Interest Group in August 1975 and entitled “A Decade of Chief Justice Barwick-Crisis in Constitutional Interpretation?”. The reader more interested in the broad purposes of s. 90 than in the details of the recent cases could turn immediately to Part 2 infra p. 20 ff.

2 Cf. Dickenson’s Arcade Pty Ltd v. Tasmania (1974) 130 C.L.R. 177, 230per Stephen J.

3 E.g. Howard, Australian Federal Constitutional Law (2nd ed. 1972) 385Google Scholar; Cremean, “Consumption Taxes, Licence Fees and Excise Duties” (1974) 9 Mel– bourne University Law Review 735, 737.Google Scholar

4 Supra n. 3.

5 Parton v. Milk Board (Victoria) (1949) 80 C.L.R. 229.

6 Matthews v. Chicory Marketing Board (Victoria) (1938) 60 C.L.R. 263.

7 Browns Transport Pty Ltd v. Kropp (1958) 100 C.L.R. 117.

8 Peterswald v. Bartley (1904) 1 C.L.R. 497, 509. The steps by which this definition was expanded (“or perhaps eroded”:Dickenson’s case (1974) 130C.L.R. 177, 218 per Gibbs J.) are set out in more detail in Part 2 of this Article.

9 (1963) 110 C.L.R. 264.

10 Id. 271, 273.

11 (1964) 111 C.L.R. 353.

12 Id. 365-366.

13 Western Australia v. Hamersley Iron Pty Ltd (No. I) (1969) 120 C.L.R. 42; Western Australia v. Chamberlain Industries Pty Ltd (1970) 121 C.L.R. 1. See also Victoria v. l.A.C. (Wholesale) Pty Ltd (1970) 121 C.L.R. 1, 42.

14 Supra n. 3.

15 (1964) 111 C.L.R. 353, 379.

16 Id. 378.

17 Id. 369-370.

18 Id. 382.

19 Id. 368.

20 Id. 377; Western Australia v. Hamersley Iron Pty Ltd (No. 1) (1969) 120 C.L.R. 42, 66.

21 (1964) 111 C.L.R. 353,378.

22 Id. 374.

23 Id. 376, 379 (respectively).

24 Id. 378-379.

25 Stone, Legal System and Lawyers’ Reasonings (1964) 235-300.Google Scholar

26 Western Australia v. Hamersley Iron Pty Ltd (No. 2) (1969) 120 C.L.R. 74,88 per Windeyer J.; Western Australia v. Chamberlain Industries Pty Ltd (1970) 121 C.L.R. 1, 30 per Owen J.; see also Windeyer, Some Aspects of Australian Constitutional Law (J.A. Weir Memorial Lecture 1972) 62.

27 Infra pp. 9, 16.

28 Western Australia v. Hamersley Iron Pty Ltd (No. I) (1969) 120 C.L.R. 42.

29 Western Australia v. Chamberlain Industries Pty Ltd (1970) 121 C.L.R. 1.

30 S. 99.

31 Ss. 99A, 99B.

32 S. 23(2)(b) of the Judiciary Act 1903-1973 (Cth) provides that if the Court is equally divided in opinion in any case other than an appeal, the opinion of the Chief Justice shall prevail. The Court comprised only six justices because Sir Alan Taylor died before the decision was handed down.

33 (1969) 120 C.L.R. 42, 55-56 per Barwick C.J., 68-69 per Windeyer J., 70-71per Owen J.

34 Id. 56 per Barwick C.J.

35 Id. 69 per Windeyer J.

36 Id. 71 per Owen J.

37 Id. 67.

38 Ibid.

39 Id. 64-65.

40 Id. 61.

41 Id. 63.

42 Id. 56.

43 (1970) 121 C.L.R. 1, 30.

44 (1969) 120 C.L.R. 42, 63.

45 (1970) 121 C.L.R. 1, 16-17 per Barwick C.J., 29 per Windeyer J., 30 per Owen J.

46 Id. 24.

47 Id. 18 per McTiernan J., 34 per Walsh J. Kitto J. had already conceded the point in Hamersley (1969) 120 C.L.R. 42, 58. McTiernan J. did not make the point clearly, but it appears to follow from his emphasis on the payment of money rather than on the mere issuing of a receipt.

48 Id. 18-19 per McTiernan J., 23 per Kitto J., 41 per Walsh J.

49 Id. 15.

50 Ibid.

51 Ibid.

52 Id. 23.

53 The phrase is taken from a poem by a former Chief Justice of the High Court, Sir Frank Gavan Duffy: (1945) 19 A.L.J. 43. Note, however, that both Windeyer and Owen JJ. confessed in Hamersley to some worry and hesitation: (1969) 120 C.L.R. 42, 69, 70 (respectively).

54 (1970) 121 C.L.R. 1, 35.

55 Id. 37.

56 Ibid.

57 Id. 37-38.

58 Id. 38-40.

59 Id. 40. This lack of uniformity could occur for various reasons: two personsdealing in goods of the same quantity and value might pay different amounts of duty, since one might not receive the full price of the goods; different amounts of tax would be payable when the price was paid in one payment and when it was paid in instalments; the same tax might be payable, under the periodical statement procedure, on the receipt of the price of one article as on the receipt of the price of many such articles.

60 Id. 41.

61 Id. 41-42.

62 (1963) 110 C.L.R. 264, 271, 273 (italics added).

63 The formulation which excluded consumption taxes incorporated dicta to that effect by Dixon J. in Parton v. Milk Board (Victoria) (1949) 80 C.L.R. 229, 261. Infra pp. 40-41.

64 (1974) 130 C.L.R. 177. The Court comprised only six justices because of the illness of Walsh J.

65 Id. 209 per Menzies J., 221-222 per Gibbs J., 230-231 per Stephen J.

66 Id. 223 per Gibbs J.

67 Id. 185-186.

68 Id. 239.

69 Id. 196-205.

70 S. 3.

71 S. 7.

72 Reg. 4.

73 Reg. 2.

74 Reg. 17.

75 Regs. 2 and 17.

76 (1974) 130 C.L.R. 177, 224.

77 Id. 210.

78 Id. 233-234, distinguishing Attorney-General for New South Wales v. Home-bush Flour Mills Ltd (1937) 56 C.L.R. 390.

79 (1974) 130 C.L.R. 177, 194.

80 Id. 186.

81 Id. 241.

82 Id. 241-243.

83 Dennis Hotels Pty Ltd v. Victoria (1960) 104 C.L.R. 529.

84 Dixon C.J., McTiernan and Windeyer JJ. held that both fees were duties of excise; Fullagar, Kitto and Taylor JJ. held that neither were.

85 (1960) 104 C.L.R. 529, 555. See supra p. 2. Cf. infra p. 36.

86 Dickenson’s case (1974) 130 C.L.R. 177, 188 per Barwick C.J., 212 per Menzies J. Menzies J. rather overreacted to this argument; he stressed that Fullagar J.’s judgment was authority for the reasoning leading to the conclusion and for nothing else, that all that can be known is that His Honour decided as he did for the reasons he gave, but then added that, anyway, Fullagar J. would have reached the same conclusion on other grounds!

87 Cf. id. 226 per Gibbs J.

88 Cf. (1939) 13 A.L.J. 214, (1948) 22 A.L.J. 205.

89 Dickenson’s case (1974) 130 C.L.R. 177,225 per Gibbs J.

90 Id. 212.

91 Id. 226.

92 Id. 236.

93 Id. 188-189 per Barwick C.J., 239-240, 243-244 per Mason J.

94 Id. 206 citing Matthews v. Chicory Marketing Board (Victoria) (1938) 60 C.L.R. 263.

95 Ibid.

96 (1960) 104 C.L.R. 529, 559-560.

97 (1974) 130 C.L.R. 245.

98 1 April 1974.

99 Barwick C.J. did not participate in the hearing of Kai/is.

page 14 note 1 Id. 259 per Gibbs J., 261-263 per Stephen J.

2 Id. 251-252.

3 Id. 265.

4 Ibid.

5 Id. 254.

6 Supra n. 32.

7 Supra n. 88.

8 E.g. the Business Franchise Licences (Petroleum) Act 1974 (N.S.W.). How-ever see now the Business Franchise Licences (Petroleum) Amendment and Repeal Act 1976 (N.S.W.).

9 Supra n. 26.

10 Supra p. 9.

11 E.g. Western Australia v. Chamberlain Industries Pty Ltd (1970) 121 C.L.R. 1, 13.

12 (1960) 104 C.L.R. 529, 559-560.

13 Matthews v. Chicory Marketing Board (Victoria) (1938) 60 C.L.R. 263. However, Dixon C.J.’s own view in Dennis Hotels tends to undermine this aspect of Kitto J.’s reasoning.

14 Cf. McTiernan J.’s decision in (and later attitude to)Dennis Hotels.

15 The State Transport Act 1960 (Qld) s. 44.

16 (1958) 100 C.L.R. 117.

17 The State Transport Facilities Acts 1946-1955 (Qld) s. 35(2)(ii).

18 Hughes & Vale Pty Ltd v. New South Wales (1953) 87 C.L.R. 49 (Dixon C.J., Williams and Webb JJ.).

19 (1958) 100 C.L.R. 117, 129.

20 (1963) 110 C.L.R. 264, 271-272. The Court distinguished Matthews’s case on the basis that the levy there (£1 per half acre of land planted with chicory) was found to have a natural, though not necessary, relation to the quantity of chicory actually produced.

21 (1958) 100 C.L.R. 117, 129.

22 (1963) 110 C.L.R. 264, 273.

23 The Commonwealth v. Bank of New South Wales (1949) 79 C.L.R. 497, 642.

24 Jacobs, “Lawyers’ Reasonings: Some Extra-judicial Reflections” (1967) 5 Sydney Law Review 425, 428.Google Scholar

25 Dickenson’s Arcade Pty Ltd v. Tasmania (1974) 130 C.L.R. 177, 185;Anderson’s Pty Ltd v. Victoria (1964) 111 C.L.R. 353, 365. Furthermore, the “substantial operation” test has antecedents, so far as s. 90 is concerned, in Peterswald v. Bartley itself: (1904) 1 C.L.R. 497, 509-512. Infra p. 27.

26 The Municipal Council of Sydney v. The Commonwealth (1904) 1 C.L.R. 208, 213-214; Tasmania v. The Commonwealth (1904) 1 C.L.R. 329, 333, 350.But see Re Senator Webster (1975) 6 A.L.R. 65, 70-71 per Barwick C.J.

27 Cf. North Eastern Dairy Co. Ltd v. Dairy Industry Authority of New South Wales (1975) 7 A.L.R. 433, 471 per Mason J.

28 The historian, Professor La Nauze, has described it as “a curious sort of hypothetical history”-"A Little Bit of Lawyers’ Language: The History of ’Absolutely Free’ 1890-1900”, in Martin, (ed.) Essays in Australian Federation (1969) 57, 58CrossRefGoogle Scholar. Professor Sawer has preferred to call it, less politely, “pseudo—history”"The Future of State Taxes: Constitutional Issues”, in Mathews, (ed.) Fiscal Federalism: Retrospect and Prospect(1974) 193, 199.Google Scholar

29 Official Report of the National Australasian Convention Debates, Sydney, 1891, 23.

30 Id. 89.

31 Id. 346-370.

32 Id. 346.

33 Id. 348.

34 Id. 352.

35 Id. 354.

36 Id. 361.

37 Ibid. (italics added).

38 Id. 362.

39 Id. 365.

40 Id. 366.

41 Ibid.

42 Id. 367. Even Quick and Garran appear to have assumed that Deakin’s amended amendment was designed to limit the power of the federal Parliament: The Annotated Constitution of the Australian Commonwealth (1901) 128.

43 Official Report of the National Australasian Convention Debates, Sydney, 1891, 368.

44 Id. 789-801.

45 Official Report of the National Australasian Convention Debates, Adelaide, 1897, 835-836.

46 Id. 836.

47 Official Report of the National Australasian Convention Debates, Sydney, 1891, 952.

48 Official Record of the Debates of the Australasian Federal Convention,Sydney, 1897, 1065-1068.

49 Id. 1065.

50 Id. 1067-1068.

51 Official Record of the Debates of the Australasian Federal Convention,Melbourne, 1898, 936-937. This debate culminated in s. 55 of the Constitution.

52 E.g. Fajgenbaum, and Hanks, Australian Constitutional Law (1972) 612Google Scholar; Sawer, op. cit. 199; Joske, Australian Federal Government (2nd ed. 1971) 143-144CrossRefGoogle Scholar; Arndt, “Judicial Review under Section 90 of the Constitution: An Economist’s View” (1952) 25 A.L.J. 667, 667Google Scholar.

53 E.g. Parkes’ speech on his 1891 resolutions: Official Report of the National Australasian Convention Debates, Sydney, 1891, 24-25.

54 Tasmania v. The Commonwealth (1904) 1 C.L.R. 329.

55 Official Report of the National Australasian Convention Debates, Sydney, 1891, 958 (Chapter IV cl. 4) (italics added).

56 Cf. Fajgenbaum and Hanks, op. cit. 634-635; see also the Report of the Royal Commission on the Constitution (1929) 259-260, infra p. 35.

57 The inference might still be drawn, however, consistently with the tariff policy rationale, that the intended wider effect was confined to preventing State taxes on goods the subject of import restrictions other than customs duties. Cf. Arndt, op. cit. 677.

58 (1904) 1 C.L.R. 497.

59 Supra p. 20 n. 26.

60 (1904) 1 C.L.R. 497, 505-506 referring to ss. 55, 86, 87, 90, 93 of the Constitution.

61 Id. 509.

62 Ibid.

63 Id. 508-509.

64 Id. 507,511.

65 Id. 511-512.

66 Id. 509.

67 Id. 512, the definition being that “A direct tax is one which is demanded from the very persons who it is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another; such are the excise or customs.”

68 E.g. Duncan v. Queensland (1916) 22 C.L.R. 556, 639 per Gavan Duffy and Rich JJ.

69 Cf. Dennis Hotels Pty Ltd v. Victoria (1960) 104 C.L.R. 529, 556 per Fullagar J.

70 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (1920) 28 C.L.R. 129.

71 (1926) 38 C.L.R. 408.

72 The Act described the tax as an “income tax” but the label was, of course, not conclusive.

73 (1926) 38 C.L.R. 408, 419-420 per Knox C.J., 430-431 per Isaacs J., 435 per Higgins J., 439 per Starke J.

74 Id. 420.

75 Id. 425-426.

76 Id. 426. Cf. Isaacs’ views in the Convention Debates supra p. 24.

77 Id. 425-426.

78 Id. 435.

79 Ibid.

80 Ibid.

81 Ibid.

82 Id. 436.

83 Id. 438-439.

84 Id. 437.

85 Ibid.

86 (1927) 39 C.L.R. 139.

87 One point of distinction which was argued but rejected was that the tax was not on a commodity as such but on the transmission of news: id. 142-143, 144, 146, 147.

88 Id. 143.

89 Id. 147. Rich J. found the newspaper tax to be an excise duty even on the narrower view of the majority, but subsequently made it clear that he adhered to the wider view: Attorney-General for New South Wales v. Homebush Flour Mills Ltd (1937) 56 C.L.R. 390, 403.

90 Cf. Dennis Hotels (1960) 104 C.L.R. 529, 601 per Windeyer J.

91 (1926) 38 C.L.R. 408, 437.

92 Supra p. 25 n. 56.

93 The argument is lucidly elaborated in Fajgenbaum and Hanks, op. cit. 634-635.

94 Cf. the views of the then Premier of N.S.W. as to the real reasons for the imposition of the newspaper tax: Lang, The Turbulent Years (1970) 68.

95 The Newspaper case (1927) 39 C.L.R. 139, 143.

96 (1960) 104 C.L.R. 529, 540.

97 Part 1 of this Article supra pp. 5-9.

98 (1926) 38 C.L.R. 408, 422, 423.

99 Id. 426.

page 33 note 1 (1960) 104 C.L.R. 529, 582-583. Butcf. Dixon J. in Matthews v. Chicory Marketing Board (Victoria) (1938) 60 C.L.R. 263, 292.

2 Minutes of Evidence, Royal Commission on the Constitution of the Commonwealth (1929) 16.

3 Id. 17.

4 1d. 17-18 and 1687 (closing address).

5 Id. 733 per Eggleston, 892 per Lodge, 1323 per Holman.

6 See also id. 1159 per Mills.

7 (1904) 1 C.L.R. 497, 508-509 citing Quick, and Garran, The Annotated Constitution of the Australian Commonwealth (1901) 837-838.Google Scholar

8 (1904) 1 C.L.R. 497, 509.

9 Quick and Garran, loc. cit. Cf. Garran, The Coming Commonwealth (1897) 142.Google Scholar

10 Minutes of Evidence, Royal Commission on the Constitution of the Commonwealth (1929) 66-67.

11 Id. 67.

12 Ibid.

13 Id. 779.

14 Ibid.

15 Ibid.

16 Report of the Royal Commission on the Constitution (1929) 260.

17 Supra pp. 21-24, 25.

18 Report of the Royal Commission on the Constitution (1929) 259.

19 (1938) 60 C.L.R. 263.

20 (1949) 80 C.L.R. 229.

21 (1938) 60 C.L.R. 263, 293-299.

22 Id. 299.

23 Id. 300.

24 Id. 299.

25 Id. 302-303.

26 Id. 304.

27 Supra p. 35.

28 (1949) 80 C.L.R. 229, 259-260.

29 Id. 260. See also Whitehouse v. Queensland (1960) 104 C.L.R. 609, 618.

30 (1949) 80 C.L.R. 229, 252.

31 Id. 245.

32 Id. 245-246.

33 Id. 265.

34 Ibid.

35 Ibid. In Attorney-General for New South Wales v. Homebush Flour Mills Ltd (1937) 56 C.L.R. 390, 396 Latham C.J. began his judgment with an explanation of s. 90 along these lines. Although he was silent on the issue in Parton, he may of course have continued to keep it in mind.

36 (1949) 80 C.L.R. 229, 265-266.

37 Id. 267. This was an adoption of Isaacs J.’s dicta in the Petrol case (1926)38 C.L.R. 408, 430-431.

38 Though it was mentioned by Latham C.J. in Attorney-General for New South Wales v. Hornebush Flour Mills Ltd (1937) 56 C.L.R. 390, 396. Supra p. 37 n. 35.

39 (1927) 39 C.L.R. 139, 143. Supra pp. 30, 31.

40 Rich J. in the Petrol case (1926) 38 C.L.R. 408, 437, and McTieman J. in Parton’s case (1949) 80 C.L.R. 229, 265.

41 (1949) 80 C.L.R. 229, 260.

42 Cf. Sawer, “The Future of State Taxes: Constitutional Issues”, in Mathews, (ed.) Fiscal Federalism: Retrospect and Prospect (1914) 193, 199.Google Scholar

43 Supra pp. 21-26.

44 Cf. Sharwood, “Section 92 in the Federal Conventions: A Fresh Appraisal” (1958) 1 Melbourne University Law Review 331, 346Google Scholar, commenting on Beasley, “The Commonwealth Constitution: Section 92-lts History in the Federal Conventions” (1948-1950) 1 Annual Law Review 97 and 273 and 433Google Scholar.

45 Cf. Lane, The Australian Federal System (1972) 572.Google Scholar

46 Parton’s case (1949) 80 C.L.R. 229.

47 Cf. Dennis Hotels (1960) 104 C.L.R. 529, 556 per Fullagar J.

48 Ibid.

49 See especially Matthews’ case (1938) 60 C.L.R. 263, 277-279 per Latham C.J.

50 Part 1 of this Article, supra pp. 9-12 where the relevant cases are discussed in more detail.

51 Gibbs J. conceded so much in Dickenson’s case: (1974) 130 C.L.R. 177, 219.

52 (1949) 80 C.L.R. 229, 261.

53 Atlantic Smoke Shops Ltd v. Conlon (1943) A.C. 550.

54 (1974) 130 C.L.R. 177, 185-186.

55 Id. 238-239.

56 Id. 222-223.

57 Part 1 of this Article, supra pp. 12-13.

58 The main holding was that a fee for a licence to sell liquor calculated on a percentage of the amount paid for liquor purchased in a period prior to the currency of the licence was not a duty of excise.

59 (1974) 130 C.L.R. 177, 206.

60 Id. 236.

61 Id. 188-189.

62 Id. 239-240, 243-244.

63 M.G. Kailis (1962) Pty Ltd v. Western Australia (1974) 130 C.L.R. 245, 265.

64 Ibid.

65 (1949) 80 C.L.R. 229, 260. For a view of whether or not it is indeed correct, and of the relevance of economic considerations, Sawer, op. cit. 200; and cf. infra nn. 83 and 84.

66 (1974) 130 C.L.R. 177, 238; but he simultaneously appeared to endorse McTiernan J.’s different view in Parton’s case (1949) 80 C.L.R. 229, 265.

67 (1960) 104 C.L.R. 529, 555-556.

68 Id. 549.

69 Id. 598.

70 Id. 538-539.

71 Id. 572.

72 Cf. Zines, “The Australian Constitution 1951-1976” infra p. 89, 135-136, 143-144.

73 Cf. North Eastern Dairy Co. Ltd v. Dairy Industry Authority of New South Wales (1975) 7 A.L.R. 433, 471 per Mason J.

74 Cf. Sawer, op. cit. 200-201; Zines, op. cit. 133-134, 137, 144; Sawer, Australian Federalism in the Courts (1967) 196.

75 Cf. Zines, op. cit. 133, 137; Coper, “Freedom of Trade in India and Australia: Introductory Thoughts on the Nature of Judicial Choice” (1970) 10 Jaipur Law Journal 1Google Scholar.

76 Cf. Lane, “Economic Federalism, Excise Duty and Receipt Duty” (1969) 43 A.L.J. 614, 622-623Google Scholar. But see Mathews, “The Future of Fiscal Federalism in Australia: Political and Financial Issues” in Mathews, (ed.)Fiscal Federalism: Retrospect and Prospect (1974) 208Google Scholar, where it is argued that the interdependence of the different levels of government is more important than their independence.

77 Fullagar J., perhaps, in the Dennis Hotels case? Perhaps, also, it has influenced or at least reinforced the narrow criterion of liability approach, which has been seen by some commentators as a retreat from the “spirit” of Parton’s case: cf. “State Finances and the Excise Power” (1969) 43 A.L.J. 597.

78 Cf. Barwick C.J. in Dickenson’s Arcade Pty Ltd v. Tasmania (1974) 130 C.L.R. 177, 185; Anderson’s Pty Ltd v. Victoria (1964) 111 C.L.R. 353, 365.

79 Supra p. 43 n. 75. Gibbs J. in Dickenson (1974) 130 C.L.R. 177, 222 acknowledged the existence of policy considerations other than those in favour of the Commonwealth, but relied on that very fact to strengthen his case for the exclusion of economic, social and political factors.

80 This way of expressing the objection is taken from Gibbs J.’s recent articulation of it in Western Australia v. The Commonwealth (1975) 7 A.LR. 159, 189.

81 Note, however, that Dixon was able to achieve by judicial interpretation what he had put forward as a constitutional amendment in 1929; supra pp. 35-37.

82 As best expressed in Dixon’s well-known address on his swearing in as Chief Justice: (1952) 85 C.L.R. xi, xiv.

83 The notion of indirectness, and also the view that a tax on a step in the distribution of goods subsequent to their manufacture has the same effect as a tax on manufacture, obviously embraces economic considerations, though only in the sense, so far as the Court is concerned, of broad generalisations which can be made by reference to common experience. Cf. Sawer, “The Future of State Taxes: Constitutional Issues” in Mathews, (ed.) Fiscal Federalism: Retrospect and Prospect (1974) 193, 200Google Scholar andinfra n. 84. See also Dennis Hotels (1960) 104 C.L.R. 529, 594-595 per Windeyer J.

84 For a discussion of the relevance of economic and political factors to the minority justices in the Dennis Hotels case, see Sawer, Cases on the Constitution of the Commonwealth of Australia (3rd ed. 1964) 366Google Scholar; for a discussion of the relevance of such factors to the majority justices in the same case, see “State Finances and the Excise Power”, (1969) 43 A.L.J. 597. See also Arndt, “Judicial Review under Section 90 of the Constitution: An Economist’s View” (1952) 25 A.L.J. 667 and 706Google Scholar; the author there discusses the points at which economic theory might have assisted the Court, but in examining such problems as the nature of a tax and the distinction between direct and indirect taxes, his main concern is to devise a meaningful definition of excise and not primarily to argue from the constitutional purposes of s. 90.

85 Cf. Sawer, Australian Federalism in the Courts (1967) 59-75Google Scholar.

86 Furthermore, more weight might be given to such factors as the desire of both Commonwealth and States to preserve certain State taxes, a desire which was apparent, for example, in the receipt duty cases. Cf. the attitude of the Commonwealth at the 1973 Constitutional Convention: Official Record of Debates of the Australian Constitutional Convention, Sydney, 1973, 15.

87 Cf. Report from the Joint Committee on Constitutional Review 1959 (Commonwealth Parliament) 136-137, 205.

88 Id. 133-149. See also the 1958 Report from the Joint Committee on Constitutional Review, set out as an Appendix to the 1959 Report, 189, 205-206.

89 E.g. Strickland v. Rocla Concrete Pipes Ltd (1971) 124 C.L.R. 468.

90 Cf. Sawer, “The Future of State Taxes: Constitutional Issues” in Mathews, (ed.)Fiscal Federalism: Retrospect and Prospect(1974) 193, 199Google Scholar.

91 Supra p. 43 n. 76.

92 E.g. the cases on implied immunities of Commonwealth and State instrumentalities. Cf. Zines, “Sir Owen Dixon’s Theory of Federalism” (1965) 1 F.L. Rev. 221Google Scholar.

93 See especially the cases on s. 92 of the Constitution, most recently the North Eastern Dairy case (1975) 7 A.L.R. 433, 476-477per Jacobs J.

94 This point is pursued in Coper, “A Decade of Chief Justice Barwick-Crisis in Constitutional Interpretation?” supra p. 1 n. 1.

95 Richardson, Patterns of Australian Federalism (1973) 50-51, and compare analogous provisions in other federal Constitutions. To the extent that comparative analysis is useful, it suggests that an exclusive excise power is not a fundamental or necessary feature of federalism.

96 E.g. the Business Franchise Licences (Petroleum) Act 1974 (N.S.W.). However see now the Business Franchise Licences (Petroleum) Amendment and Repeal Act 1976 (N.S.W.).

97 The various reactions of commentators to Fullagar J.’s decision in Dennis Hotels illustrate the point made supra pp. 1-5 that the criteria by reference to which decisions are evaluated and criticised by commentators need to be made more explicit. Compare the strikingly different views of Howard, Australian Federal Constitutional Law (2nd ed. 1972) 380-381Google Scholar and Sawer, Australian Federalism in the Courts (1967) 145Google Scholar.

98 If the parallel trends in the interpretation of s. 90 and s. 92 continue, the accumulation of precedents in relation to s. 90 might become less of an obstacle than would appear at first sight. The analogy cannot be pursued here, but see Zines, ’’The Australian Constitution 1951-1976” infra p. 89, 118-121, 135.Google Scholar

99 E.g. Evans, “The Most Dangerous Branch?: The High Court and the Constitution in a Changing Society” in Hambly, and Goldring, (eds.) Australian Lawyers and Social Change (1976) 13Google Scholar; Jacobs, “Lawyers’ Reasonings: Some Extra-judicial Reflections” (1967) 5 Sydney Law Review 425 and Part 1 of this Article.

Pg-48 1 Cf. Zines, op. cit. 137 where the point is made that whether or not recourse to such materials is desirable, it does appear to be necessary.

2 Dixon, “Concerning Judicial Method” (1956) 29 A.L.J. 468, 471Google Scholar, reprinted in Jesting Pilate (1965) 152, 157-158.

3 Supra p. 44 n. 80.