Laws 150 federal constitutional law wk 20/7/00 Introduction

Parton v Milk Board (Vict) (1949)

• 
  Up to 1948, still was a tax on prod’n & must be relation betw’n tax & good (not direct, close).
  
• 
  What about sales tax? Maj said ‘yes’ sales tax was an excise (Latham CJ & McTiernan J dissented).
  
• 
  Purely tax on manufacture > tax on sale (negative because deprived States of a potential revenue).
  
• 
  Dixon J: if you tax prod’n, tax will go down to consumer & will affect demand. Tax at any point has same effect (economists disagree) – see pp 496-7.
  
• 
  Parton effectively excluded States from field of sales taxes, but its full impact was not felt until Ha v NSW (1997). 2 factors combined to hold Parton largely at bay for all those yrs: “franchise cases” & legalistic “criterion of liability” approach to the interpretation of “excise” developed by Kitto J & adopted in later yrs by Gibbs CJ, Wilson & Dawson JJ.
  

• 
  There are 3 principal modern approaches to the interpretation of “duties of excise” in s 90.
  
• 
  Unsophisticated approach:
  

• 
  This is the “substantial operation” approach (the Mason/Dixon line).
  
• 
  Represents current maj view.
  
• 
  Look at Const & purpose was Cth gain monopoly over customs & excise (s 90 intended to cover both) – really on importation & production.
  
• 
  Customs is a tax on imported goods & excise is a tax on locally produced goods (p 499.8).
  

• 
  “Criterion of liability” approach:
  

• 
  Above approach was applied in a constipated legalistic way by Kitto J in Dennis Hotels (1960).
  

• 
  Sophisticated approach:
  

• 
  This is the Fullagar/Murphy line.
  
• 
  What customs & excise have in common – traced back to Isaacs J (p 495.1), Fullagar J in Dennis Hotels, Murphy J, Toohey J, Gaudron J & Dawson J.
  
• 
  Represents current min view (Gaudron J).
  
• 
  Fullagar J in Dennis Hotels: “The duties of customs & duties of excise contemplated by Const are, I think, alike duties which are imposed as a condition of the entry of particular goods into general circulation in the community – of their introduction into the mass of vendible commodities in a State. When once they have passed into that general mass, they cease, I think, to be proper subject-matter for either duties of customs or duties of excise” (p 506.7).
  

• 
  Eg: NSW levies a 50% sales tax on all car tires imported & locally produced.
  
• 
  Mason/Dixon: this is a tax dealing with goods, sales & its excise; s 90 concerns both customs & excise; so tax is invalid.
  
• 
  Kitto: agree because taxing sale, closely related to value, clearly excise & invalid.
  
• 
  Fullagar: not taxing entry into market; it is a non-discriminatory sales tax which is neither & thus valid.
  

• 
  Dennis Hotels (1960)
  

• 
  3 modern approaches:
  

“Substantial operation” approach – Dixon CJ (McTiernan & Windeyer JJ).

“Criterion of liability” approach – Kitto J (Taylor J).

Sophisticated approach – Fullagar J.

[Menzies J adopted a peculiar approach]

• 
  Sale of liquor in Vic was regulated (need licence to sell liquor & licence was taxed). Victualler’s licence fee was 6% & was backdated. For temporary licence, you paid in current period.
  
• 
  HCA held 4:3 > backdated – valid (not excise), temporary – invalid (excise).
  

• 
  Dixon CJ (substantial/operation approach):
  
• 
  Looking at Vic liquor arrangement substantively, all liquor basically has 6% sales tax, & following Parton, that is an excise.
  
• 
  See p 499.2 & p 500 para 2 line 5.
  

• 
  Kitto J (criterion of liability approach):
  
• 
  A duty of excise is a tax (“It is now established that for constitutional purposes duties of excise are taxes directly related to goods imposed at some step in their production or distribution before they reach the hands of consumers” – Bolton v Madsen (1963). This is maj view in Ha, minus the word “directly”).
  
• 
  Adopts a legalistic view: taxing sale of goods & taxing right to sell goods is different.
  
• 
  Looks at leg’n & says what criterion of taxpayer renders taxpayer liable to pay is the grant of the licence.
  
• 
  Neither fee was an excise – the right was taxed & not the sale itself.
  
• 
  This means that if a “licence” was slipped in, it allowed States to argue that it was a tax on licence to sell & not a tax on sale [see Dennis Hotels, Dickenson & H C Sleigh (1977)]. This helped States build up revenue.
  
• 
  See p 502 line 1, p 502.4 & p 504.8
  

• 
  Fullagar J (sophisticated approach):
  
• 
  A non-discriminatory sales tax would be neither customs nor excise & since rejected Parton, the fee was valid; if licence to produce liquor then different view.
  
• 
  Must it be a tax on goods? Yes. Must it be imposed on prod’n or manufacture of goods? Yes. Must it be imposed by reference to quantity or value of goods? No. Not close relation; fact that it adds to price of goods is enough.
  
• 
  An excise is a tax on prod’n no matter how calculated.
  

• 
  Menzies J:
  
• 
  backdated: valid (cannot say for certain that fee/tax would inevitably be imposed).
  
• 
  temporary: invalid (because current, can say for certain that have to pay).
  

• 
  Taylor J:
  
• 
  Purpose of leg’n was regulatory because dealing with licensing of commodity that is potentially dangerous – therefore, not excise.
  
• 
  Dixon CJ criticises Taylor J (see p 500.7 & p 501.8).
  

• 
  Dickenson’s Arcade v Tasmania (1974)
  

• 
  Dixon J in Parton: if you tax prod’n, tax will go down to consumer & will affect demand. Tax at any point has same effect (economists disagree) – see pp 496-7.
  
• 
  There are 2 taxes:
  

1. 
   tax similar to Dennis Hotels
   
2. 
   tax on consumption of tobacco
   

• 
  Dennis Hotels should be followed in an analogous way.
  
• 
  Tas Act imposed a 2½ per cent (max) licence fee backdated 6 mths on retail sale of tobacco.
  
• 
  Tax on consumption should legally be an excise but because Dixon J in 1949 said it was not, they said a tax on consumption was not an excise.
  

• 
  There were 2 cases before Dickenson’s Arcade (1974) & Hematite (1983).
  
• 
  In Bolton v Madsen (1963), excise was defined (see above, p 510.1) – this is the view of maj today (except take out word “directly”) & Dixon CJ appears to adopt Kitto J’s “criterion of liability” approach.
  
• 
  In Anderson’s v Vic (1964), Barwick CJ adopted def’n of “excise” in Bolton v Madsen but did not accept the “criterion of liability” approach. He adopted a factorial approach.
  

• 
  Hematite Petroleum v Vic (1983)
  

• 
  Only 6 judges sat.
  
• 
  Before Hematite, law was that an excise could be imposed on prod’n or sale, any point up to point of consumption, but still had to be relation betw’n tax & goods.
  
• 
  On prevailing law, not excise because fixed fee but 4:2 held it was an excise.
  
• 
  All 3 modern approaches:
  

Substantial operation (Mason, Brennan & Deane JJ).

Criterion of liability (Gibbs & Wilson JJ) – dissenting.

Sophisticated (Murphy J).

• 
  Criterion of liability (p 510.1 def’n):
  
• 
  Could not be excise on either of 2 points.
  
• 
  Not directly related to goods (because fixed fee).
  
• 
  Not on prod’n but on right to produce (Gibbs J).
  

• 
  Murphy J (old Fullagar J view):
  
• 
  An excise was a tax on local prod’n no matter how calculated.
  
• 
  This was a Vic tax on Vic natural gas – therefore, tax on Vic prod’n & therefore excise.
  

• 
  Mason J:
  
• 
  Several points:
  

1. 
   Purpose of s 90: classic purpose of unsophisticated approach. See s 90 as intended to give Cth monopoly of all taxes on goods (p 515.1/8/9, p 508.1).
   
2. 
   Adopts reasoning of Parton (not just holding but all of it with emphasis of economic effect on demand). Parton said reason for sales tax is because eco effect of it is same as prod’n tax – adds to cost of goods & passed onto consumer & affects demand (p 514.5).
   
3. 
   Strong rejection of “criterion of liability” approach (Bolton v Madsen approach) & strong argument for practical substantial operation (p 516.7). Mason J is right because you should not be able to slip in a licence & say it is a tax on licence to sell not tax on sale (Kitto J). Mason J adopts a substantive approach.
   

So, both maj & min in Ha adopt pragmatic, substantive approaches, not legalistic ones.

4. 
   This case takes it further that you do not need a direct relation betw’n tax & goods for it to be a duty of excise. Excise has to be a tax on goods. “To justify the conclusion that the tax is upon or in respect of the goods it is enough that the tax is such that it enters into the cost of the goods & is therefore reflected in the prices at which the goods are subsequently sold” (p 516, p 519 note 2 & p 520).
   

Vic Parl knew quantity going thro’ pipes & fixed fee. This is not absolute strong authority that a large fixed fee on prod’n of goods will be a duty of excise because 1 of maj judges (Mason J) did not find it a fixed fee because Parl would have had some relation (p 517, p 520 note 4).

5. 
   Factors – p 517 para 2 & 3. A small fixed fee might only be regarded as a tax on licence & not goods, but that is not the case here.
   

1. 
   Only attracted to 3 pipelines & quantity would be clearly known.
   
2. 
   Not a tax on licence because already hold licence.
   
3. 
   Special fee.
   
4. 
   Essential step in prod’n – core idea of excise is prod’n.
   

• 
  Mason J: large fee on prod’n; not totally fixed fee such that it does not have any relation to goods.
  
• 
  Murphy, Brennan & Deane JJ: where you have a fixed fee but because on prod’n, it was an excise; further you are away from prod’n, the more it matters.
  

Summary (Hematite):

• 
  Last of the non-Dennis Hotels cases.
  
• 
  Established that a large fixed fee on prod’n can be (not always) an excise but 1 of maj judges (Mason J) said it was not a fixed fee.
  
• 
  3rd pipeline refined gas taken to Melb households (already sold).
  
• 
  Gibbs CJ & Wilson J:
  

• 
  Adopt broad def’n, criterion of liability approach.
  
• 
  Is this a tax directly related to goods, in step of prod’n or distribution?
  
• 
  Fixed fee, so no relation to goods.
  
• 
  Criterion of liability is the licence not the sale.
  
• 
  Not an excise.
  

• 
  Murphy J:
  

• 
  Fullagar J view; takes a substantive view on q “is this a tax on local prod’n?”.
  
• 
  If gas is in pipes that are inevitably Vic, it is an excise.
  

• 
  Mason, Brennan & Deane JJ:
  

• 
  Getting further from core (prod’n) but still close enough to have same result (fee was invalid).
  

• 
  All fees held invalid, even though 3rd not determined by HCA.
  

• 
  Gosford Meats v NSW (1985)
  

• 
  Arose in the Dennis Hotels stream (licence on fee with backdate).
  
• 
  Maj of 4:3 held that Dennis Hotels & Dickenson did not apply to fees on licences to produce goods.
  
• 
  Backdated licence fee on prod’n (not sale like in Dennis Hotels & Dickenson’s) of meat by NSW with certain amount per animal in past period.
  
• 
  Gibbs CJ, Wilson & Dawson JJ (min) dissented on grounds of precedent (Dennis Hotels, Dickenson & H C Sleigh) & principle. There should be no distinction betw’n a licence to sell & produce (otherwise inconsistent with Parton). They applied criterion of liability laid down in Bolton v Madsen (licence fee was on privilege & no natural or practical relation betw’n tax & goods – so not an excise).
  
• 
  Mason, Brennan & Deane JJ (maj) took opposite view on principle (Dennis Hotels is bullshit & cannot be applied when we talk about the “heartland” which is prod’n) & precedent (Dennis Hotels would have been decided differently if it was a licence to produce rather than sell because Fullagar J would have held it invalid as a duty of excise), & said it was excise.
  
• 
  Murphy J said a NSW tax on abattoir operations, relevant commodity was meat > NSW tax on NSW prod’n & is clearly excise.
  

• 
  Ha v NSW (1997)
  

• 
  Raised Dennis Hotels issue.
  
• 
  Concerned a licence to sell tobacco > in line of Dickenson & Philip Morris (1989) but main diff was Dickenson (2½ per cent) & here it was 100%, & alos less backdated (more proximate here, 2 mths back).
  
• 
  Mason CJ & Deane J retired, replaced by Gummow & Kirby JJ.
  
• 
  Only case overruled by Ha was Philip Morris.
  
• 
  Substantial operation approach (unsophisticated) adopted by maj of 4.
  
• 
  Sophisticated approach adopted by min of 3 (should be excise on prod’n).
  
• 
  Asked HCA to open Parton, & maj affirmed Parton (p 523).
  
• 
  Held: principle of Parton affirmed; Dennis Hotels & Dickenson confined to narrow factual sit’ns. Min wanted to overrule Parton (this would give States a lot of revenue & could reach Dennis Hotels results on rational ground).
  

• 
  Maj (Brennan CJ, McHugh, Gummow & Kirby JJ):
  

1. 
   Excise is not confined to a tax on Aust prod’n but also incl taxes on sale. Authority long established (p 524.5, 528.8 & 529.3). Reaffirmed Parton (p 529.2).
   
2. 
   Regard substantial operation approach as established since Philip Morris in 1989 (p 524.7).
   
3. 
   Define object of Federation in a more limited way: free trade with uniform tariff (p 525.9, 508 note 1). A wide view of excise is necessary to accomplish this (p 527.8).
   
4. 
   Dennis Hotels & Dickenson not overruled (?) – p 532. It would not be excise if tax on privilege (right to run business or licence) but here it is revenue raising & high (100%) & attempt to undo what s 90 aims.
   
5. 
   Ct unanimously agreed that it would not engage in prospective overruling as this would be an exercise of non-judicial pwr.
   

• 
  If Hematite tax with regulatory purpose, would regulatory purpose save it? – stupid.
  

• 
  Min (Dawson, Toohey & Gaudron JJ):
  

1. 
   They say object of Federation was customs union (common external tariff) & free trade, not an eco union.
   
2. 
   Non-discriminatory tax cannot impair Cth tariff policy (p 533.9 & 535.3).
   
3. 
   Reject reasoning in Parton:
   

1. 
   supposed policy reason (complete monopoly)
   
2. 
   eco theory of Parton (they reject the notion that tax at any time results in same effect).
   

They are on strong ground here (see p 539.9).

4. 
   Test for them: is this a tax discriminating on local prod’n? (p 538.7 & 539.5). This is a q of substance, not form. Leave open whether local means State or Aust.
   

Summary (Ha):

• 
  Min: excise is only tax on local prod’n (State or Aust).
  
• 
  Maj: broad Parton view > tax on any dealing with goods (prod’n or sale, except consumption) will be an excise.
  
• 
  Only complication: where Dennis Hotels kind of tax (licence with backdated fee) – seems there the q would be determined by analysing whether “was it to regulate the sale of the commodity rather than raise $”. Whether the tax is regulatory is relevant elsewhere is open.
  
• 
  States lost out in Ha but States not so bad today because GST [Cth tax under s 51(ii) paid to States].
  

WK 11.2

26/10/00
Taxation

• 
  s 51(ii) confers pwr on Cth Parl to make laws with respect to “Taxation; but so as not to discriminate betw’n States or parts of States”.
  
• 
  ss 53 & 55 are formal restrictions (see pp 337-340).
  
• 
  Laws imposing taxation must commence in the House of Reps. Senate cannot amend such bills (laws imposing taxation) but can make suggestions. This is based upon HOL, HOC distinction > “Compromise of 1891” at Convention.
  
• 
  s 53 speaks of proposed laws (bills) imposing taxation.
  
• 
  s 54 speaks of proposed laws (bills) imposing revenue.
  
• 
  These are not justiciable – cts reluctant to intervene in legislative process.
  
• 
  Once bill is enacted, it is no longer a bill & no longer governed by the section.
  
• 
  s 55 is main prov’n (it is justiciable).
  

s 55 para 1: Laws imposing taxation shall deal only with imposition of taxation, & any other matter is void.

s 55 para 2: Laws imposing taxation shall deal only with one subject of taxation; laws dealing with imposition of customs shall deal only with customs; laws dealing with imposition of excise shall deal only with excise.

• 
  Meaning of taxation – what is a “tax”?
  
• 
  There has been a lot of movement on this topic in HCA but in the wrong direction.
  
• 
  s 53 does mention some alternatives to tax – fines & other pecuniary penalties, fees for licences or for services, royalty, fee for privilege & fee for acquisition or use of property, are all not taxes.
  
• 
  Economists say a tax is unrequited payment.
  
• 
  HCA moved ludicrously to give tax a broad def’n with several consequences. It expands role of s 55 (also stupidly interpreted) & gives s 51(ii) a broad scope.
  
• 
  Tax must not be rational.
  
• 
  Limitations incl:
  

s 51(ii) – laws on topic of taxation must not discriminate betw’n States & parts of States.

s 99 – laws dealing with revenue must not grant preference to State or part of State.

• 
  When is a law considered to be a law with respect to taxation under s 51(ii)?
  

• 
  R v Barger (1908)
  

• 
  2 doctrines applied by HCA – reserved State pwrs & single-subject characterisation combined with “substance” of leg’n prevailing over “form”.
  
• 
  Classic eg of reserved State pwrs like Huddart, Parker.
  
• 
  Policy of new protection – Cth sought to extend practical reach of Industrial Relations Awards by imposing an excise on agricultural goods (thro’ eco incentive) but allowed an exemption if you can show you complied with Awards.
  
• 
  Where was this pwr? Cth said taxation pwr.
  
• 
  HCA rejected by 3:2 – maj had reserved State pwrs thinking; Isaacs & Higgins JJ in dissent.
  
• 
  Reserved State pwrs > HCA said that word “taxation” read naturally might be broad enough to incl controlling behaviour & not just raise revenue. But should read it in light of fact that certain pwrs reserved to States (one of them was reg’n of industrial arbitration) & therefore read down “taxation” & give it a narrow meaning.
  
• 
  “The primary meaning of ‘taxation’ is raising money for the purposes of gov’nt by means of contributions from indiv persons” (p 358).
  
• 
  “We are thus led to the concl that the pwr of taxation, whatever it may incl, was intended to be something entirely distinct from a pwr to directly regulate the domestic affairs of the States, which was denied to the Parl” (p 358).
  
• 
  See also p 360 which mentions that meaning of “taxation” is limited by notion that matters reserved exclusively to the States.
  
• 
  Kitto J said in Fairfax (1965) that maj in Barger took proposition that “taxation” in s 51(ii) has a special meaning, that it refers only to taxation not imposed as a means of regulating the domestic affairs of the States (p 365.9).
  
• 
  So, tax pwr did not cover this.
  
• 
  HCA went on to say that really in substance it is not a law on taxation but on regulating manufacture & labour relations which is not a Cth topic (p 359.7/9).
  
• 
  These 2 doctrines destroyed the leg’n.
  

• 
  Engineers (1920) destroyed reserved State pwrs but no single case rejects single-subject characterisation with “substance” over “form”.
  
• 
  Kitto J says both dead because HCA adopted multiple-subject characterisation (although technically Barger not overruled).
  

• 
  Isaacs & Higgins JJ in dissent is regarded as the current pos’n of HCA (Higgins J is quoted in Fairfax).
  
• 
  It is fine to look at “substance” of leg’n over “form” (but they reject reserved State pwrs) but determine “substance” by asking what are the rights & obligs granted by the leg’n – what conduct is rendered unlawful?
  
• 
  If the only unlawfulness was not to pay tax/excise, then it is a law on tax.
  
• 
  If conduct unlawful, then what is calling itself a tax is really a penalty.
  
• 
  See p 360.9, 361.5.
  

• 
  Fairfax (1965)
  

• 
  Classic modern case.
  
• 
  Leading judgment is that of Kitto J.
  
• 
  Issue: Cth granted taxation benefits to trustees investing in gov’nt securities – was it a law on topic of taxation or on trust (which is normally a State topic).
  
• 
  HCA unanimously held that it was valid under s 51(ii).
  

• 
  2 points:
  
• 
  Barger no longer applies (reserved State pwrs gone because of Engineers & single-subject characterisation gone in favour of multiple-subject charaterisation).
  
• 
  See p 366.4, 367 line 4.
  
• 
  Substance test on p 363.9 – “by reference to the nature of the rights, duties, pwrs & privileges which it changes, regulates or abolishes … is it in its real substance a law upon, ‘with respect to’, one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character?”.
  
• 
  Raising of revenue might still be valid – what is the legal oblig (same as Isaacs & Higgins JJ in Barger).
  
• 
  Cannot be penalty if conduct punished is not unlawful.
  
• 
  See p 367.9, 368.1 & 366.5.
  

Notes on p 368:

• 
  In Murphyores (1976), Mason J said that Fairfax should be regarded as sweeping away Barger.
  
• 
  Second Fringe Benefit Tax Case (1987)
  

• 
  Argued that it breached Fairfax because supposed purpose was to eliminate fringe benefits.
  
• 
  Revenue raising device (not eliminating fringe benefits).
  
• 
  HCA upheld law on s 51(ii) – Menzies J gave no explanation for his strange point; this is not a ‘prohibitive’ tax; Menzies J’s illustration is contrary to real principle of Fairfax (as stated by Kitto J).
  

• 
  Northern Suburbs (1993)
  

• 
  This case adds nothing. It is a modern repetition.
  
• 
  Cth gov’nt scheme to induce employers to appropriate funds for training employees & to encourage them to do so, passed leg’n that said any employer who did not provide this should pay a training guarantee charge to gov’nt (any shortfall payable to Cth). Cth made grants to States.
  
• 
  HCA said it did not fall under s 51(ii) because not a tax.
  
• 
  3 args made:
  

1. 
   Not tax but penalty (primary purpose of this was not revenue raising).
   
2. 
   Not tax because fee for services.
   
3. 
   Not tax because it was arbitrary.
   

• 
  All args failed, & held valid:
  

1. 
   A law can be a law with respect to taxation even if revenue-raising is a secondary purpose (p 371).
   

Only penalty if there is antecedent obligs (p 370.3, 373.4).

2. 
   Rejected on ground that no clear specific service provided to fee payer (p 370.8).
   
3. 
   Not arbitrary – McCormick v FCT (1984) is leading case.
   

• 
  Air Caledonie v Cth (1988)
  

• 
  Modern case that loosened excessively (& this is opinion of min) what is meaning of tax.
  
• 
  Concerned Airport arrivals tax (fee for immigration clearance).
  
• 
  Migration Act 1958 & its amendment in 1987.
  
• 
  Law imposing taxation & when combine with rest of MA, it would breach s 55 para 1.
  
• 
  Held unanimously a law imposing taxation, but combined rest & said breached s 55 para 1 because rest deals with not only taxation but also migration (this is a ludicrous result).
  
• 
  Looked at Latham CJ’s def’n of tax from Matthews v Chicory Marketing Board (Vict) (1938): “a compulsory exaction of money by a public authority for public purposes, enforceable by law, and … not a payment for services rendered” (p 341).
  
• 
  HCA said this def’n is not a good guide because almost all factors pointed out could be absent & it could still be a tax.
  
• 
  Fee for privilege > cannot be this because although might be privilege for aliens, it will not be Aust citizens to whom this is a right & not a privilege.
  
• 
  Fee for services > arguable that it was a fee for services for immigration clearance (check face, computer, etc) but rejected by HCA because leg’n did not identify any particular service (p 344.3).
  
• 
  So, it was a law imposing taxation & breached s 55 para 1.
  

Summary (Air Caledonie):

• 
  Breaks down Latham CJ’s def’n. None of elements seen as essential.
  
• 
  Highlights need for specificity in fee for service.
  
• 
  Establishes that can combine leg’n when looking at s 55.
  

Notes on p 344:

• 
  A compulsory fee could be a fee for services (note 1).
  
• 
  Has to be proportionality betw’n fee & service (p 342.2).
  

• 
  Australian Tape Manufacturers (1993)
  

• 
  Copyright Act 1968 was amended in 1989 to overcome prob dealing with breach of copyright when blank tape used to privately copy. Imposed a blank tape levy/royalty paid by vendor of blank tapes & ultimately by co & paid to collective agency to artists.
  
• 
  Was s 55 breached?
  
• 
  Arg was ‘yes’ because this levy was a tax – 1989 law imposing taxation was tax & when combined with 1968 breached s 55 & invalidated 1989 Act.
  
• 
  Virtually today any levy is regarded as a tax unless falls into exceptions.
  
• 
  Can a levy be a tax if not payable to gov’nt? Yes. So, if required to pay $20 per yr in David Jones, yes it can be a tax.
  
• 
  Did it fall within exceptions (like royalty, fee for licences, payment in return for property right)?
  
• 
  HCA said it was neither royalty nor fee for licence (pp 345-6).
  
• 
  Min said too carried away in Air Caledonie – when not have to have public purpose, ct went too far. It may not be a royalty but it was analogous to fee for licence (right to record & not be in breach of copyright).
  
• 
  Note: Maj suggests that had 1989 stood alone it would have been invalid for breaching s 81 (requirement that revenues or moneys raised by Exec Gov’nt be paid into Consolidated revenue Fund).
  

• 
  ATM (1993) ctd
  

• 
  Picked up Air Caledonie & said a levy not for public purpose could be a tax.
  
• 
  Applying Air Caledonie, HCA said ‘yes’ it was a tax (4:3).
  
• 
  It does not have to be gov’nt money to be a tax. Public purpose does not necessarily equal public $ (p 349.4/8).
  
• 
  In this case, public scheme > public purpose (so more than likely a tax).
  
• 
  Prima facie, a levy of money will be a tax (pres that levy is a tax) unless fall into exceptions (p 350.9). These exceptions incl: royalty (payment for a right & should be some proportionality betw’n right & value), fee for licence.
  
• 
  Maj said it was not a royalty (no right given by artists) & not a fee for licence.
  
• 
  Maj:
  

1. 
   Can be a tax if money not paid to gov’nt.
   
2. 
   Took pedantic view on royalty & fee for licence.
   

• 
  Min:
  

1. 
   Said HCA got carried away in Air Caledonie; it must be public $ for it to be taxation (must be payable to gov’nt) – this is in line with Sup Ct of USA & Canada.
   
2. 
   More pragmatic view – not technically a royalty but analogous to a licence (P > V – record without breaching copyright).
   

• 
  But maj is the law.
  

Summary (ATM):

• 
  Widened concept of tax.
  
• 
  Any levy of $ will be prima facie a tax unless it falls within one of the exceptions (royalty, fee for licence or service rendered, charge for acquisition or use of property, fine or penalty).
  

• 
  Harper v Minister for Sea Fisheries (1989) – commodity is scarce
  

• 
  Unusual case.
  
• 
  Abalone was a finite but renewable resource.
  
• 
  To preserve, Tas put in place regime to grant licences for which people had to pay a fee.
  
• 
  H said did not have to pay tax because excise; Tas said not even a tax.
  
• 
  HCA unanimously agreed it was not a tax.
  
• 
  It was a fee for acquisition of property or analogous to it (analogous to a profit a prendre) & was essentially upheld by HCA. It was not a tax.
  
• 
  Brennan J: amounts payable to obtain licence are of same character as a charge for acquisition of property & do not bear character of taxes – they are not duties of excise (p 492.5).
  
• 
  Dawson, Toohey & McHugh JJ: in order for it to be analogous to property rather than be a tax, there must be a relation betw’n fee & benefit granted.
  
• 
  Mason CJ, Deane & Gaudron JJ: unique case, a case supported by conservation principles (p 492.8) – not a mere device for tax collecting.
  

Summary:

• 
  For a q on s 90 – whether a State tax is an excise, 1st must look to see if it is a tax.
  
• 
  For a q on s 51(ii) – if in substance it imposes a tax.