Ha v New South Wales [1997] HCA 34

Ha v New South Wales [1997] HCA 34

The impugned provisions of the Business Franchise Licences (Tobacco) Act 1987 (NSW), which require payment of licence fees calculated as a percentage of the value of tobacco sold, are invalid because they impose duties of excise within the meaning of s 90 of the Constitution. Such imposts are taxes on the sale and distribution of goods and are not mere regulatory licence fees. The exclusivity of the Commonwealth's excise power precludes such State taxes.

Jurisdiction
Australia
Procedural Posture
Constitutional Law Challenge / Final Decision of the High Court Answering Reserved Questions
Outcome
By majority, the challenged NSW tobacco licence fee provisions are invalid as excise duties; costs awarded as specified.
Legal Topics
['excise Duties' 'state Taxing Powers' 'section 90 of the Constitution' 'business Franchise Licences (tobacco) Act 1987 (nsw)']
['constitutional Law' 'taxation'] ['excise Duties' 'state Taxing Powers' 'section 90 of the Constitution' 'business Franchise Licences (tobacco) Act 1987 (nsw)']

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Procedural Posture

Constitutional Law Challenge / Final Decision of the High Court Answering Reserved Questions

Legal Issues

  1. 1 ['Whether provisions of the Business Franchise Licences (Tobacco) Act 1987 (NSW) imposing licence fees on tobacco retailers and wholesalers are invalid as duties of excise contrary to s 90 of the Constitution']

Ratio Decidendi

The impugned provisions of the Business Franchise Licences (Tobacco) Act 1987 (NSW), which require payment of licence fees calculated as a percentage of the value of tobacco sold, are invalid because they impose duties of excise within the meaning of s 90 of the Constitution. Such imposts are taxes on the sale and distribution of goods and are not mere regulatory licence fees. The exclusivity of the Commonwealth's excise power precludes such State taxes.

Court Disposition

By majority, the challenged NSW tobacco licence fee provisions are invalid as excise duties; costs awarded as specified.

Orders

  • ["First matter: Q(1): Yes — provisions of ss 36(1), 41(1), 41(3), 43, 45 and 47(1) of the Business Franchise Licences (Tobacco) Act 1987 (NSW) are invalid as imposing a duty of excise; Q(2): Yes — s 30(1) in so far as it applies to a retailer's licence is invalid; Q(3): Defendants to pay the plaintiffs' costs....