Armstrong v Victoria (No 2)

[1957] HCA 55

99 CLR 28

ARMSTRONG AND OTHERS

THE STATE OF VICTORIA AND OTHERS

DEFENDANTS. [No. 2.] Constitutional Law (Cth.)-Freedom of inter-State trade, commerce and intercourse-

State statutes-Validity-Provision that owners of certain vehicles having more than a specified load capacity shall pay towards compensation for wear and MELBOURNE,

tear caused to public highways in Victoria a charge at the rate prescribed in the May 14, 15,

schedule-Charge of one-third of a penny per ton of sum of tare weight of vehicle and forty per cent of load capacity per mile of public highway travelled in Victoria SYDNEY,

-No indication in statute of how charge of one-third of penny arrived at Aug. 30

Provision for charge to be applied only to maintenance of public highways- daily record of journeys of vehicle along public highways in Victoria required to be kept by owner and for forwarding by him within fourteen days of end of each month record of previous month and amount of moneys owing by way of charges in respect of that month-Absence of discrimination between vehicles engaged in intra-State and inter-State trade-Use of evidence in determining validity-Validity of statute imposing charge in application to vehicles engaged in inter-State trade-Statute providing for payment of substantial registration fee on registration of vehicles-Including vehicles engaged exclusively in inter-State trade-Fee quantified by reference to power and weight of vehicle, commercial use and possession of certain types of tyres-Payment enforced by penalising use on highway of unregistered vehicle-Validity-The Constitution (63 &64 Vict. c. 12) S. 92-Commercial Goods Vehicles Act 1955 (No. 5931) (Vict.), 83. 25-33-Motor Car Act 1951 (No. 5616) (Vict.), 88. 6, 17.

Part II of the Commercial Goods Vehicles Act 1955 (Vict.) requires the owner of every commercial goods vehicle of load capacity exceeding four tons and not engaged in conveying certain specified classes of goods to pay as a contribu- tion towards compensation for wear and tear caused to public highways in Victoria a charge calculated in accordance with the fourth schedule of the Act; that schedule provides that the charge to be paid in respect of every such vehicle shall be one-third of a penny per ton of the sum of-(a) the tare weight of the vehicle; and (b) forty per cent of the load capacity of the

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vehicle-per mile of public highway along which the vehicle travels in Vic- toria. The proceeds of the charge imposed are to be paid to the credit of a special account and applied solely for the maintenance of public highways.

Held by Dixon C.J., McTiernan, Williams and Fullagar JJ., Webb, Kitto and Taylor JJ. dissenting, that the provisions of the Part do not infringe S. 92 of the Constitution and validly apply to vehicles used exclusively in

Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] (1955) 93 C.L.R. 127, at pp. 171-179, 190-195, 208-211, followed.

Section 3 of the Motor Car Act 1951 (Vict.) defines motor car as meaning any vehicle propelled by internal combustion etc. and used or intended to be used on any highway. Section 6 provides that every motor car shall be registered by the Chief Commissioner of Police and by sub-s. (4) that a fee as provided for in the second schedule shall be paid on the registration of or the renewal of the registration of a motor car etc. The second schedule provides that for a motor car used for carrying goods for hire or in the course of trade (with certain exceptions) the fees shall be certain amounts for each power-weight unit, varying according to the number of wheels and the types of tyres etc. It also provides a method of determining the power-weight units. These fees were substantial, in some cases exceeding £100 per annum. By S. 17 of the Act it was provided that if a motor car was used on a highway without being registered as required the driver should be guilty of an offence, unless he could make out one of certain defences, none of which is presently material.

Held by Dixon C.J., McTiernan, Williams, Webb, Kitto and Taylor JJ., Fullagar J. dissenting, that by reason of S. 92 of the Constitution, these pro- visions cannot validly apply to vehicles used on Victorian roads but exclusively in the course of inter-State trade and commerce.

Willard v. Rawson (1933) 48 C.L.R. 316, discussed.

ACTION directed to be argued before the Full Court.

On 29th March 1956 an action was commenced in the High Court of Australia wherein the following were plaintiffs, namely Richard Gilbert Armstrong on behalf of himself and other named members of the Road Transport Development Association of Victoria Patrick Joseph Martin on behalf of himself and other named members of the Interstate Division of the Victorian Road Transport Associa- tion, Arthur Edward Nilson on behalf of himself and other named members of the Long Distance Road Transport Association of Australia, the Australian Hauliers' Federation and the Australian Road Transport Federation. The defendants were the State of Victoria, the Transport Regulation Board of the State of Victoria, and Selwyn Havelock Porter who was sued personally and as representing all other officers and all members of the Police Force of Victoria.

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The plaintiff sought declarations as follows:--1 that Pt. II of the Commercial Goods Vehicles Act 1955 (Vict.) or alternatively SS. 26-33 inclusive thereof and the fourth and fifth schedules thereto or alternatively parts of such sections and schedules were contrary to S. 92 of the Constitution and beyond the powers of the Parlia- ment of the State of Victoria and invalid; 2 alternatively to (1) [No. 2].

that the said Part or the said sections or parts thereof had no applica- tion to owners of commercial goods vehicles while such vehicles were travelling along public highways in Victoria in the course of or for the purposes of inter-State trade commerce or intercourse or to persons driving such vehicles or to such vehicles whilst SO travelling; 3 that SS. 6 and 17 (a) (b) and (d) of the Motor Car Acts 1951-1956 (Vict.) or alternatively sub-ss. (1), (2), (3), (4) and (5) of S. 6 and sub-ss. (a) (b) and (d) of S. 17 or alternatively parts thereof were contrary to S. 92 of the Constitution and beyond the power of the Parliament of the State of Victoria and invalid. (4) alternatively to (3) that the said sections or the said sub-sections or parts thereof had no application to owners, operators or drivers of commercial goods vehicles used on highways in Victoria exclu- sively in the course of or for the purposes of inter-State trade commerce or intercourse. Certain consequential relief by way of injunctions was also sought.

The action was heard by Taylor J. who, after taking evidence, directed pursuant to S. 18 of the Judiciary Act 1903-1955 that the case be argued before the Full Court upon the evidence before him.

The relevant statutory provisions and the nature of the evidence before Taylor J. appear sufficiently from the judgments of the Court hereunder.

J. D. Holmes Q.C. (with him C. I. Menhennitt Q.C.), for the plaintiffs.

J. D. Holmes Q.C. Section 26 of the Commercial Goods Vehicles Act 1955 (Vict.) is invalid or alternatively cannot validly apply to the plaintiffs' vehicles while being operated in the course of inter-State trade. The judgments of Kitto J. and Taylor J. in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] (1) are correct: see per Kitto J. (2); per Taylor J. (3). Alternatively if a charge is permissible the section does not satisfy the tests laid down by the other Justices in that case. The act does not reveal the basis of the computation of the charge which, it is submitted,

1(1955) 93 C.L.R. 127. 2(1955) 93 C.L.R., at pp. 222 et 3(1955) 93 C.L.R., at pp. 238-240. 99 CLR 31

is essential, since the Court must be able to determine whether the Act conforms to the Constitution. [He referred to Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 1; Hughes &Vale Pty. Ltd. v. State of Queensland 2; Armstrong v. State of Victoria 3. The words in the Act' towards compensation for wear and tear" are surplus in that if they had been omitted the Act would have had precisely the same meaning and operation. The test whether a charge is or is not a tax is in the ultimate description of it. [He referred to City of Halifax v. Nova Scotia Car Works Ltd. 4 Parton v. Milk Board (Vict.) 5. The Court cannot know how the fixed charge has been arrived at or what it includes. The legislature having fixed the amount it is submitted that evi- dence would not be admissible to determine whether the amount was reasonable. The Act is also objectionable in that one flat rate has been fixed for all types of roads and all types of vehicles and that the charge is permanent. Wear and tear on roads varies with a variety of different circumstances including types of roads, weather conditions, vehicles, tyres etc. If a statute is valid at the time of enactment it cannot subsequently become invalid by reason of changed conditions. [He referred to Australian Textiles Pty. Ltd. v. The Commonwealth 6.] If a charge is permissible it should have been confined to relevant highways. [He referred to Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 7; Armstrong V. State of Victoria 8.] The fact that the charge is not related to the actual weight including load of the vehicle on the road but is fixed on the assumption that the vehicle is forty per cent loaded shows that the charge is not based on actual wear and tear of the road. The onus is on the defendants to show that the charge is a permissible one and not simply a tax. If evidence is admissible then the evi- dence in the present case when examined shows that the rate pre- scribed does not comply with the test of being reasonable compensa- tion for wear and tear on the relevant highways. The notion that a State may impose a charge for the use of the roads as a facility provided by it has been rejected by the Privy Council in the Hughes &Vale Case [No. 1] 9. There is no room in the face of S. 92 for any doctrine that road transport must pay its way or must contribute a reasonable sum for going on its way. There is

1(1955) 93 C.L.R., at pp. 175 et 2(1955) 93 C.L.R. 247, at pp. 257- 3(1955) 93 C.L.R. 264, at pp. 284, 4(1914) A.C. 992, at pp. 997 et 93 C.L.R. 1, at p. 31. 5(1949) 80 C.L.R. 229. 6(1945) 71 C.L.R. 161, at p. 180. 7(1955) 93 C.L.R., at pp. 175-176, 8(1955) 93 C.L.R., at pp. 278, 286. 9(1955) A.C. 241, at p. 305 (1954) 99 CLR 32

A. no distinction to be made against road transport simply on the

basis that the State provides the road. The benefits which flow from the existence of the roads in the course of trade are not benefits that flow one way. They are not benefits which flow only to the road transports; they are benefits which flow to the State. That is not a legal conception, but the only legal conception that is open, [No. 2].

it is submitted, is that rejected by the Privy Council in the Hughes &Vale Case [No. 1] 1. Section 6 of the Motor Car Act 1951 (Vict.) provides that every motor car, as defined by the Act used or intended for use on any highway in Victoria, shall be registered see also S. 17. Regulation 59 of the Motor Car Regulations 1952 contains an exemption in respect of vehicles registered in other States. The position is no different from that which this Court dealt with in Nilson v. State of South Australia 2. [He referred also to Pioneer Tourist Coaches Pty. Ltd. v. State of South Aus- tralia 3 Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 4.]

C. I. Menhennitt Q.C. Even on the assumption that some charge in respect of wear and tear caused to the roadway is permissible, when the provisions of Pt. II of the Commercial Goods Vehicles Act are examined in the context of the whole of that Act and of the Transport Regulation Act 1955 they are revealed as simply imposing taxes designed for the purpose of protecting the railways against competing road transport. That conclusion flows primarily from the nature of the exemptions. Section 25 (b) exempts from charges vehicles carrying perishable goods and livestock. Section 7 dealing with vehicles engaging in intra-State trade provides that one of the matters to be considered by the licensing authority is the avail- ability of existing services. That includes railway services see Victorian Railway Commissioners v. McCartney and Nicholson 5. Section 4 makes provision for the granting of certain licences as of right. This includes licences to persons engaged in carrying perishable goods or livestock. [He referred to Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 1] 6 McCarter V. Brodie 7.] The exemption provided by S. 25 (a) of vehicles with a carrying capacity of under four tons corresponds with a class of vehicles exempted from the obligation to obtain licences by S. 4 (1) (f)

1(1955) A.C. 241; 2(1955) 93 C.L.R. 292, at pp. 302, 3(1955) 93 C.L.R. 307, at p. 315. 4(1955) 93 C.L.R., at pp. 181, 196, 213, 215 et seq., 244 et seq. 5(1935) 52 C.L.R. 383, at pp. 389, 6(1955) A.C., at pp. 295, 301 (1954) 93 C.L.R., at pp. 22, 27. 7(1950) 80 C.L.R. 432, at p. 448. 99 CLR 33

of the Act. Under the Transport Regulation Act every passenger vehicle which operates in Victoria must satisfy the Transport Regulation Board that it is a service which is justified having regard to the existence of other alternative services: see SS. 19, 21, 28. There is no provision similar to Pt. II of the Commercial Goods Vehicles Act. There is no obligation for fees received to be used for road maintenance. So that when the two Acts are examined the overall position is that there is exempted from the obligation to pay charges three very substantial classes of services, all of which are revealed by the Act to be services which are essential, and which are not competitive, and which Parliament has declared should be permitted to operate despite the existence of the railways. So that the description of the charge as being compensation for wear and tear caused to public highways is in truth not a proper descrip- tion. This is borne out by the evidence which shows that of over one half of a million motor vehicles in Victoria including 136,000 trucks and buses, the charge is confined to some 24,000 vehicles. The legislation discriminates against a class of transport operators, including inter-State operators. The charge is in truth a tax. [He referred to Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 1.] The figures adduced by the defendant in evidence are demonstrably unreal and show that the figure of .33d. per ton mile fixed by the Act is in excess of a reasonable figure even if any charge is permissible.

H. A. Winneke Q.C. Solicitor-General for the State of Victoria (with him D. I. Menzies Q.C. and K. A. Aikin), for the State of Victoria. The plaintiffs must establish, in order to succeed, that the charge imposed or the method of collection or both render their trade unfree, within the meaning of S. 92. It is submitted that the charge imposed by the Act is merely an attempt by the State to obtain from users of the heavier class of commercial vehicles some compensation for the special damage which they do to the roads. It is the kind of charge which was indicated to be permissible by Dixon C.J., McTiernan, Williams, Webb and Fullagar JJ. in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 2. On analysis the Act does not claim full compensation for the damage done but only a contribution towards that compensation. The Commercial Goods Vehicles Act 1955 proceeds on entirely different lines from the Transport Regulation Act 1954 held not to apply to vehicles used in the course of inter-State trade in Armstrong V. State of Victoria 3. To begin with, the present Act is a general

1(1955) 93 C.L.R., at pp. 170, 172. 2(1955) 93 C.L.R. 127. 3(1955) 93 C.L.R. 264. 99 CLR 34

law of the State of Victoria which takes in all operators who use

Victorian roads with heavy commercial vehicles. It does not pre- scribe a specific code applicable to inter-State transport operators, The judgments of this Court above referred to establish that a charge imposed as a real attempt to fix a reasonable recompense for wear and tear caused to the road is not inconsistent with S. 92 [No. 2].

of the Constitution. The real point of difference in the Court is that the Judges who held that a charge might validly be imposed did SO on the basis that there was a real difference between a charge imposed on an individual for a particular service which he actually uses and a charge of a general kind imposed on a taxpayer irrespec- tive of whether he uses the service provided or not. [He referred to Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 1: Armstrong v. State of Victoria 2; South Australian Harbors Board v. South Australian Gas Co. 3.] Under S. 30 of the Act the whole of the proceeds of the charge are to be devoted to the maintenance of public highways. The method of collection set out in SS. 27, 28 and 29 of the Act involves no interference with the actual journey of an inter-State transport operator. The rate of charge, being fixed by the Act, is known to the operator before he commences his journey and the total charge for the journey can be easily calculated. The charge bears on its face the marks of moderation. It is based on only forty per cent of the load capacity of the vehicle. Independently of evidence the Act itself establishes the constitutional validity of the charge. Firstly, the Act shows that the charge is related to the actual use of the road and to the wear and tear caused. The deliberate expression of the view of the legislature as to the nature of the charge is not to be lightly disregarded. Secondly, the exemptions provided by the Act do not affect the true nature of the charge as it is otherwise disclosed by the Act. If there is power to impose a charge it must carry with it the power to make exemptions provided that the charge paid by those who are liable is not thereby loaded. The Act is not a railway protection Act. There are many thousands of vehicles of a capacity of less than four tons which are competing with the railways. No adverse inference can be drawn from the exemption of vehicles carrying perishable goods and livestock. Large quantities of such goods and livestock are carried by the railways. Nor can any inference be drawn from the exclusion of commercial passenger vehicles which are dealt with in Pt. II of the Transport Regulation

1(1955) 93 C.L.R., at pp. 177-179, 2(1955) 93 C.L.R., at pp. 273, 276, 277, 282, 283, 285, 286. 3(1934) 51 C.L.R. 485, at pp. 490, 190 et seq., 208 et seq. 491, 499, 501, 503-505. 99 CLR 35

Act. Such vehicles pose separate problems. In fixing a charge it is impossible to regard the roads of the State except as one general network which every operator, intra-State or inter-State, is entitled to use at will. If, on its face, the Act satisfies the con- stitutional requirements, the onus would be on the plaintiffs to show that in some way the Act SO operates as to render their trade unfree. [He referred to Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 1.] The Motor Car Act 1952 which exempts from the necessity of registration vehicles registered in other States contains identical relevant provisions to those declared valid by this Court in Willard v. Rawson 2.

D. I. Menzies Q.C. (with him J. Mcl. Young), for the defendants the Transport Regulation Board and Selwyn Havelock Porter. Part II of the Commercial Goods Vehicles Act 1955 is of the same character as a Victorian statute enacting that every person using a Victorian road who damaged that road should be liable to pay the State compensation for the damage caused. In the United States a distinction has been drawn between a charge for use of and a charge for the privilege of using State highways. [He referred to Capitol Greyhound Lines v. Brice 3.] It is submitted that in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 4 Kitto and Taylor JJ., in expressing a view that no charges were permissible, approached the matter from the point of view of a privilege tax: see per Kitto J. 5 and per Taylor J. 6. The Court should have regard to the declaration of the legislature as to the nature of the charge. [He referred to Abitibi Power &Paper Co. Ltd. v. Montreal Trust Co. 7; R. v. University of Sydney: Ex parte Drummond 8.] The plaintiffs did not adduce any evidence that the charge operated as an excessive charge. Some latitude is to be allowed to the legislature in fixing the charge. Nothing more than a rough judgment is required. [He referred to Capitol Greyhound Lines v. Brice 9.] The use of evidence in determining the validity of charges of this character has been dis- cussed in the Supreme Court of the United States. [He referred to Hendrick v. State of Maryland 10; Interstate Transit Inc. v. Lind- sey 11; Capitol Greyhound Lines v. Brice 12.] If evidence may be

1(1955) 93 C.L.R., at p. 194. 2(1933) 48 C.L.R. 316. 552-553, 554-555 [94 Law Ed., 3(1950) 339 U.S. 542, at p. 557 at pp. 1057, 1059, 1060, 1061.] [94 Law. Ed. 1053, at p. 1062.] 4(1955) 93 C.L.R. 127. et seq. [59 Law. Ed. 385, at p. 5(1955) 93 C.L.R., at pp. 220-223. 391 et seq.]. 6(1955) 93 C.L.R., at pp. 238-239. 7(1943) A.C. 536, at p. 548. 953.] 8(1943) 67 C.L.R. 95, at p. 113. 9(1950) 339 U.S., at pp. 546, 550, 10(1914) 235 U.S. 610, at pp. 622 11(1931) 283 U.S. 183 [75 Law. Ed. 12(1950) 339 U.S., at p. 547 [94 Law. Ed., at p. 1057.] 99 CLR 36

considered, the evidence here indicates that the charge is what it is

described to be, that it is reasonable and that if there is added to the charge what the average vehicle pays by way of registration and half of the contribution to the petrol tax, the total is always less than the estimate of damage attributable to that vehicle. [No. 2].

R. R. St. C. Chamberlain Q.C. and W. A. N. Wells for the State of South Australia, addressed the Court as amici curiae.

J. D. Holmes Q.C., in reply. The following written judgments were delivered :-

DIXON C.J. This suit is brought in the original jurisdiction of the Court for the purpose of attacking the validity of certain provisions of Victorian law affecting the liability to pecuniary exactions of persons carrying goods in motor vehicles in the course of inter-State trade. In the first place the validity is attacked of the provisions of Pt. II of the Commercial Goods Vehicles Act 1955 (No. 5931) of Victoria in SO far as those provisions purport to require the owners of vehicles engaged in inter-State trade to pay a charge. In the second place the validity is attacked of the provisions of the Motor Car Act 1951 (Act No. 5616) as amended in SO far as they purport to apply to owners operators or drivers of commercial goods vehicles used on highways in Victoria in the course of inter- State trade and to require the payment of the fees set out in pars. B (b) and (c) of the second schedule. Since the issue of the writ the second schedule has been replaced by another: see Act No. 6038. But the attack has been continued on the footing that the substituted schedule now applies.

The plaintiffs sue as representative parties. They purport severally to represent groups of persons all possessing a common interest because they engage in the inter-State carriage of goods, but grouped according to membership of certain associations. Such a form of representation may be open to objection but no objection was in fact taken to the constitution of the suit. As it was constituted not only were the State of Victoria and its Trans- port Regulation Board named as defendants but the Chief Commis- sioner of Police as representing the police force. This seems a novel and objectionable course, but we are not called on to consider it.

Except for the allegation that the provisions attacked burdened inter-State commerce the defendants admitted the facts pleaded in the statement of claim. In justification of the charge under Pt. II

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of the Commercial Goods Vehicles Act 1955 of which the plaintiffs complained the defendants pleaded that the charge is no more than a reasonable recompense or compensation for the use of the roads in Victoria by the vehicles in respect of which it is imposed or a reasonable contribution to road maintenance for the wear and tear caused to the roads by such vehicles. An analogous plea was set up with respect to the fees which the Motor Car Act 1951 as amended was expressed to make payable on registration.

Both the sufficiency in law and the correctness in fact of these justifications were put in issue by the plaintiffs. The parties agreed that a convenient course would be to lead evidence before a single judge and upon that evidence to have the case argued before the Full Court. The action came on for trial before Taylor J. accord- ingly and at the conclusion of the evidence his Honour pursuant to S. 18 of the Judiciary Act 1903-1955 directed the case to be argued before the Full Court upon the evidence before him.

At the argument the weight of the attack was directed against the validity of Pt. II of the Commercial Goods Vehicles Act 1955 although of course SS. 6 and 17 and the material parts of the second schedule of the Motor Car Acts as affecting inter-State transport of goods did not escape challenge.

The provisions of Pt. II of the Commercial Goods Vehicles Act were treated as an attempt by the Victorian legislature to take advantage of the view expressed in the joint judgment of McTiernan and Webb JJ. and myself 1 and in the respective judgments of Williams J. 2 and Fullagar J. 3 in Hughes &Vale Pty. Ltd. V. State of New South Wales [No. 2] 4 that the freedom of trade commerce and intercourse among the States which S. 92 assures is not necessarily incompatible with the States obtaining from inter- State carriers by road some contribution towards the upkeep of the highways they use. In each of the three judgments mentioned there is a discussion of the reasons why without impairing the free- dom of inter-State trade commerce and intercourse a State may require inter-State carriers to pay some contribution to the mainten- ance of the roads used, and there is a consideration of the nature of, and the limits upon, the charge that might be made. Kitto J. and Taylor J. adopted the contrary view. Kitto J. expressed his conclusion thus-..... Neither in reason nor upon authority have I found it possible to reconcile the freedom which S. 92 decrees for trade, commerce, and intercourse among the States with the exist- ence in a State legislature of a power to make a compulsory levy

1(1955) 93 C.L.R., at pp. 171-179. 2(1955) 93 C.L.R., at pp. 190-195. 3(1955) 93 C.L.R., at pp. 208-211. 4(1955) 93 C.L.R. 127. 99 CLR 38

upon an individual as a condition, or by reason, of his traversing the roads of the State in the course of an inter-State journey 1. His Honour proceeded to give reasons for this conclusion, reasons it must at once be admitted which must strike the mind as possessing prima facie great logical force, deriving as they do from a simple position. It is the position that whatever restrictions, consistently [No. 2].

with S. 92, you may apply to some individuals for the sake of others

SO that their possibly conflicting interests may be mutually adjus- ted " 2, you cannot say that if a trader engages in an inter-State activity he must make a payment of money without moving into a different field you must deny that he may enter as of right and make a law having a direct adverse operation upon the activity, in short burden it with tax.

It may be said that Kitto J. regarded it as neither logically proper nor practically possible to draw a distinction between a compulsory charge for the use of the roads as a facility or service and such a tax.

The whole matter seems to me to come down to this said his Honour. "A State law imposing a compulsory levy upon an individ- ual by reference to his use of something belonging to or provided by the State must necessarily depend upon the existence in the State legislature of one of two powers: either a power to exclude that individual from that use, or a power to tax him upon that use. That S. 92 prevents the taxation of inter-State trade, commerce, and intercourse, is obvious. That it prevents the exclusion of individuals from the use of the public roads in the course of inter-State trade, commerce, or intercourse, except by a law that is regulatory in the relevant sense of that word, the Privy Council has conclusively laid down" 3. (See Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 4 ).

Taylor J. carried the same reasoning a step further. His Honour dealt with the argument that to require an inter-State operator to pay for his use of the road was no more than to levy charges for facilities provided and that "since those operators receive money's worth in return for the payment of the charges, they are not sub- jected to any unconstitutional burden 5. This line of reasoning Taylor J. regarded as containing a fallacy which would appear from a consideration of the manner in which public revenues may be raised. His Honour first discussed the raising of revenue for general or special purposes either throughout the State or upon or in relation to particular persons or classes of persons, and the possi- bility always of saying broadly that those paying taxes pay for

1(1955) 93 C.L.R., at p. 216. 2(1955) 93 C.L.R., at pp. 218, 219. 3(1955) 93 C.L.R., at p. 225. 4(1955) 93 C.L.R., at pp. 216-225. 5(1955) 93 C.L.R., at p. 238. 99 CLR 39

services or facilities received, or to be received, or for the carrying out of public works which they, as members of the community, or of some special class, enjoy or will enjoy" 1. His Honour then expressed his general conclusion as follows-" Perhaps this concep- tion is more readily recognizable when a tax is levied for a special purpose upon those persons whose special benefit it is thought the purpose will serve. But whatever course is adopted the power to levy imposts or taxes is subject to the constitutional limitation which arises from the terms of S. 92 and it seems clear to me that any impost or tax, or so-called charge, whether levied upon a limited class for special purposes or by way of contribution to a tax for general purposes, which is made payable as a condition of engaging in or carrying on inter-State trade, must offend against S. 92' (1). (See Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 2 ).

The primary case for the plaintiffs is that the views of Kitto J. and Taylor J., which formed part of the ratio decidendi by which those learned judges reached their judgment in the case, are correct and that such views should receive effect in the present case. The contrary views expressed by the other members of the Court, the plaintiffs say, went beyond what was strictly necessary for the decis- ion of the case and the plaintiffs attack them as erroneous. But the plaintiffs go further and contend that the provisions contained in Pt. II of the Commercial Goods Vehicles Act 1955 go outside the conditions which the judgments of the majority of the Court con- templated as essential to the validity of any charge made upon inter-State carriers for using the roads SO that on any view Pt. II cannot be supported.

The heading of Pt. II is "Contributions to Road Maintenance" The central provision of the Part is sub-s. (1) of S. 26 which enacts that the owner of every commercial goods vehicle shall, as provided by the Part, pay to the board towards compensation for wear and tear caused thereby to public highways in Victoria a charge at the rate prescribed in the fourth schedule. That schedule provides that the charge to be paid in respect of every vehicle shall be one-third of a penny per ton of the sum of-(a) the tare weight of the vehicle; and (b) forty per cent of the load capacity of the vehicle-per mile of public highway along which the vehicle travels in Victoria.

A second sub-paragraph of the fourth schedule provides that in assessing the charge fractions of miles and fractions of hundred- weights shall be disregarded, but hundred-weights (in relation both

1(1955) 93 C.L.R., at p. 239. 2(1955) 93 C.L.R., at pp. 236-240. 99 CLR 40

to tare weight and load capacity) are to be taken into account as decimals of tons. The expression "commercial goods vehicle means (as does the word "vehicle' itself) a motor car (together with any trailer) carrying goods for hire or reward or for any con- sideration or in the course of any trade or business: S. 2. There is an immaterial exclusion from the definition. The exclusion is of [No. 2].

a primary producer's vehicle of not more than two tons load capacity when used solely for his business of primary producer.

The board to which the charge is to be paid is the Transport Regulation Board under the Transport Regulation Act 1955 (No. 5930).

Section 25 excludes from the operation of Pt. II vehicles of not more than four tons load capacity. If a trailer is attached its capacity is included in the measurement. Section 25 also excludes vehicles used for the carriage of certain commodities. It will be necessary to say more of this later but for the moment it can be passed by. A definition gives means of readily determining load capacity S. 2.

There are provisions dealing with the enforcement and collection of the charge. The liability to pay it accrues from the actual use of the road and the amount is quantified by the length in Victoria of the journey. Payment is not exacted as a condition precedent to carrying the goods or entering upon or continuing the journey, Sub-section (2) of S. 26 provides that the charge shall become due at the time of the use of any public highway by the vehicle and if not then paid shall be paid and recoverable as provided in the Part. Sub-section (3) makes the charge a civil debt due to the board by the owner of the vehicle and recoverable summarily or in any court of competent jurisdiction. Failure to pay is also included among the offences which S. 31 creates. Conviction for an offence is an occasion upon which the court may order payment to the board of any amount which the evidence shows to be unpaid S. 32. Records must be kept by the owner of a commercial goods vehicle of his journeys in Victoria and must be sent to the board together with the amount owing for charges, subject to any arrangement with the board: SS, 27, 28 and 29.

Section 30 which consists of two sub-sections is of sufficient importance to set out. It is as follows :- (1) All moneys received by the Board by way of charges under this Part shall be paid into the Country Roads Board Fund to the credit of a special account to be called the 'Roads Maintenance Account'. (2) Money to the credit of that account shall be applied only on the maintenance of

99 CLR 41

public highways (including grants to municipalities for that H. C. OF purpose)."

From the foregoing certain cardinal features of the charge are evident. In the incidence of the charge there is no distinction between commercial goods vehicles which pass over the border and those which do not. The rate of the charge is a third of a penny a ton mile calculated on the tare weight and two-fifths of the load capacity of the vehicle. It applies only to vehicles of more than four tons load capacity, that is to heavy lorries and the like whose use of the road might be supposed to make a considerable contribu- tion to the increase of the costs of maintenance. In the next place the amount of the charge depends on the distance covered in Victoria. Then the proceeds of the charge must go to the credit of a Roads Maintenance Account formed in the Country Roads Board Fund and money to the credit of that account must be applied to the mainten- ance of public highways either directly or through municipalities. Lastly the charge is according to S. 26 (1) a payment towards compensation for wear and tear caused by commercial goods vehicles to public highways in Victoria ". It might be wrong to accept this description of the charge as providing in itself a demonstrative reason for concluding that the charge is simply compensatory, but it is given additional force by the requirement of S. 30 (2) that the money shall be applied only to the maintenance of public high- ways. The expression "maintenance" is not defined in the statute itself but the Country Roads Board Fund is an account established in the Treasury by S. 38 of the Country Roads Act 1928 and S. 14 of that Act contains a definition of the term which would confine the expenditure to keeping roads in the condition they possessed when constructed, or if a road has since been improved, in its improved condition. It is a definition which, while not in terms made directly applicable, shows what the legislature means.

A matter that is to be noted is that the rate of the charge is uniform and does not vary with the class of road traversed or with its susceptibility to damage from the axle load of the vehicle or with its sufficiency, in point of design, construction or maintenance, to bear the axle load.

The inquiry whether the charge may be lawfully imposed con- sistently with S. 92 may conveniently be divided into two parts. There is first the question whether there is any description of charge for using its roads that a State may impose upon transport including inter-State transport without infringing upon the freedom assured by S. 92. If so, there is then the question whether the charge now in question is of the permissible description.

99 CLR 42

No one can be more alive than I am to the difficulties of the first of these questions but the full re-examination which the sub- ject has received in the present case has not led me to repent of the views expressed upon it in the reasons of McTiernan J., Webb J. and myself in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 1. Accordingly I wish to begin by incorporating those [No. 2].

pages in this judgment by reference. In what follows I shall endeavour to avoid repeating what they contain. The reasoning there appearing does not however go back to the more abstract propositions from which Kitto J. begins in stating the grounds of his opinion on this question in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 2. As will be seen from the citations which his Honour gives, I have long understood the words of S. 92 in the sense which Kitto J. describes. Any abstract restatement of the meaning of the law is however exposed to misconstruction and moreover time must disclose that this or that aspect deserves greater emphasis than was foreseen. In McCarter v. Brodie 3

I spoke of what I had written in the case of O. Gilpin Ltd. v. Com- missioner for Road Transport and Tramways (N.S.W.) 4 and to that I wish only to add that, if that dissenting judgment and the dissenting judgment in Willard v. Rawson 5 have now acquired any authority, what is important for present purposes to notice is the statement in the latter judgment 6 of the doctrine prevailing in the United States with reference to motor transport between States and the terms in which it is rejected as inapplicable to S. 92. There occurs in the citation the following passage- If a statute fixes a charge for a convenience or service provided by the State or an agency of the State, and imposes it upon those who choose to avail themselves of the service or convenience, the freedom of com- merce may well be considered unimpaired, although liability to the charge is incurred in inter-State as well as intra-State transactions. But in such a case, the imposition assumes the character of remuner- ation or consideration charged in respect of an advantage sought and received " 7. In the judgment in O. Gilpin's Case (4) the fact that the interference must amount to a restriction or burden is made the first consideration 8 and by way of example of what is not a burden the illustration is given of tolls on a bridge 9.

It was not until the decision of the Privy Council in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 1] 10 that any

1(1955) 93 C.L.R., at pp. 171-179. 2(1955) 93 C.L.R., at p. 217. 3(1950) 80 C.L.R. 432, at p. 467. 4(1935) 52 C.L.R. 189. 5(1933) 48 C.L.R. 316. 6(1933) 48 C.L.R., at pp. 333, 334. 7(1933) 48 C.L.R., at p. 334. 8(1935) 52 C.L.R., at p. 204. 9(1935) 52 C.L.R., at p. 206. 10(1955) A.C.241 (1954) 93 C.L.R.I 99 CLR 43

question could arise as to the nature or extent of the conception underlying these statements. Now, as it appears to me, the develop- ments which have occurred in the intervening years show that the conception was neither sufficiently emphasised nor defined. Indeed the question may perhaps be said to be whether the conception should be expanded and applied to roads.

When it is said that a toll upon a bridge, to take the example mentioned, does not burden inter-State commerce, it does not mean that the payment is not borne by the traffic or that the payment is

SO small that its incidence cannot be felt. It means that the payment is of such a kind that it is no impairment of the freedom of commerce or of movement if you are required to make it. The Air Navigation Regulations do not impose a burden on inter-State air navigation when they forbid the use of an aerodrome if it is neither under the control of the Director-General of Civil Aviation nor licensed by him and when at the same time they require the payment of charges for the use of aerodromes, air routes and airway facilities maintained and operated by the Commonwealth (cf. regs. 89 and 104). Nor do State laws empowering harbour author- ities to impose a tonnage rate on inter-State ships berthing at wharves or a charge upon the goods unshipped necessarily burden inter-State commerce.

Although the payments are exacted under the authority of the law from parties engaged in inter-State commerce who must incur the charges if they are to pursue the inter-State transactions, yet there is no detraction from the freedom of inter-State commerce. The reason, as I venture to suggest, simply is that, without the bridge, the aerodromes and airways, the wharves and the sheds, the respective inter-State operations could not be carried out and that the charges serve no purpose save to maintain these necessary things at a standard by which they may continue. However it may be stated, the ultimate ground why the exaction of the pay- ments for using the instruments of commerce that have been men- tioned is no violation of the freedom of inter-State trade lies in the relation to inter-State trade which their nature and purpose give them. The reason why public authority must maintain them is in order that the commerce may use them, and SQ for the commerce to bear or contribute to the cost of their upkeep can involve no detraction from the freedom of commercial intercourse between States. It is not because the charges are consensual for plainly they are imposed by law; if the conditions are fulfilled that the law prescribes, a liability arises. It is not because they are based on property. Indeed the instruments of commerce in question

99 CLR 44

are public works often subject to and complicated by a combination

of authorities.

Once however it appears that, under colour of the law, the charge is imposed not for the purpose of obtaining a proper contribution to the maintenance and upkeep of the work but for the purpose of adversely affecting the inter-State commerce, then whatever its [No. 2].

guise it is called in question by S. 92 as an infringement of the freedom of trade commerce and intercourse among the States.

I was never able to share the view that because the State was responsible for providing and maintaining both railways and roads it was open to the State without impairing the freedom of inter- State commerce to impose a restraint or control on the carriage of goods or persons by road and so, as it was called, to "co-ordinate" the passenger or goods traffic between the two. I could not see how it was consistent with S. 92 whether done by a licensing system or by some other means of restriction. Now, of course, that propos- ition has been definitely overruled. But it is one thing to say that the fact that the State provides the roads does not mean that a restraint or restriction by the State of the carriage of goods or persons over them is no detraction from the freedom of trade commerce and intercourse among the States. It is another thing to say that the constitutional assurance of that freedom means that no part of the expense of providing the roads may be thrown directly upon the traffic using them in the course of trade including inter- State trade.

The idea that because the State provided roads and railways the State could SO to speak control the distribution of inter-State traffic in goods and passengers between the two means of transport seems to have its source in the traditional belief that a man may do what he likes with his own and in the tacit assumption that the State does not, in such a matter, differ from a man. But it is an idea that has been put aside once for all. Nevertheless the ques- tion still remains whether the State, considered as an institution of government, must look to its general resources of revenue not only in order to provide the highways but also to maintain them and can demand no contribution from the commerce that uses them if the commerce be inter-State. The question depends, in one view, upon our notion of what is freedom of inter-State commerce and in another view upon our conception of the place taken among the instruments of commerce of roads constructed to carry motor traffic of all kinds. One may suppose that, if the governments concerned combined to construct a new roadway between Melbourne and Sydney of the most modern kind capable of bearing heavy traffic,

99 CLR 45

S. 92 would have nothing to say to a decision on the part of the governments that it should not be constructed or opened as a free public way but only as a toll road SO that the annual charges for interest and costs of maintenance should be borne by the traffic that chose to use it. Such a road would of course clearly fall within what was said in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 1 viz. " A modern highway is in fact a constructional work of a very substantial character indeed. cannot be distinguished from the facilities that have been men- tioned either in cost, the technical and engineering skill it demands or the general purpose it serves. It is an engineering work of a major description designed to carry heavy motor vehicles between distant places" 2.

It would be true that the old roads would remain as alternatives to

the traffic. It would be true too that the new road would not have been dedicated to the public as a highway and would not otherwise have come directly under the law of public highways. But how far are these two matters elements determining the char- acter of the toll as nothing but compensation for the use of a physical thing provided for the service of commerce"? For I venture to say that the toll supposed must bear that aspect and not be regarded as an unconstitutional burden upon the freedom of inter-State trade. The alternative choice of the old road would speedily become unreal. And the law of public highways is State law which, unless S. 92 is to be construed as rendering it unchange- able, the State Parliament may change or abolish as it sees fit.

The truth is that we cannot, in this problem, ignore the ultimate financial relationship between the road and the traffic. If the road were made by concessionaires under a franchise we would say that but for the right to levy tolls the road would not exist and that because the road performed a special service to the traffic, the traffic must pay the tolls. The illustration is of course far from the present case for we are concerned not with a modern highway of such a description or with toll roads, but with a ton mileage charge for all Victorian highways. The value of the illustration is that by its very obviousness it directs the mind to what must, as it seems to me, be the true point of the present question. The true point must lie in the recognition of the completely interdependent relation between modern transport and modern roads, not only as a matter of engineering but also as a matter of finance. The success of transport by road depends upon the state of the roads and the state of the roads depends upon the expenditure upon them,

1(1955) 93 C.L.R. 127. 2(1955) 93 C.L.R., at p. 178. 99 CLR 46

expenditure in reparation, for the most part, of the wear and tear upon them caused by the transport.

I believe that the logic of the relationship has led very many countries to place a great part of the cost of highways upon the traffic that uses them. Here it is done by, 1 the contributions made under the Commonwealth Aid Roads Act 1954-1955 out of the customs and [No. 2].

excise duties mentioned in the schedule to that Act, which in effect are levied on motor fuel, 2 registration fees and 3 levies more or less analogous to that now in question. In America the pattern that obtains and has obtained can be sufficiently seen from the case cited in the argument of Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] (1) and particularly from the opinion of Frankfurter J. and the schedule thereto in Capitol Greyhound Lines v. Brice (2).

In the light of the considerations to which I have referred in the foregoing and, more particularly, of those stated in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] (3), it appears to me that the imposition of a charge for using the roads of a State is not necessarily inconsistent with the freedom of inter-State commerce.

But it is evident that such a charge must not go outside or beyond the limitations which are necessarily implied in that conception of its nature which forms its justification. That conception is that if the charge is no more than a fair recompense for the actual use made of the highway having regard, not only to the wear and tear to which every use of it contributes, but to the costs of maintenance and upkeep, its imposition may not be incompatible with the free- dom guaranteed by S. 92. As the cases in the United States suggest, it is not possible consistently with S. 92 to impose a tax on a man in respect of his right to engage in the inter-State carriage of goods or people. It is another thing, however, to require him to pay for the actual use he makes of the road. Again, to impose the capital costs of road construction upon the traffic would not seem consis- tent with S. 92. Traffic is a constant flow and the regularly recurring charges of maintaining a surface for it to run upon may be recover- able from the flowing traffic without any derogation of the freedom of movement but any contribution to capital expenditure goes altogether outside such a principle. The charge moreover must be a genuine attempt to cover or recover the costs of upkeep. It may of course be arrived at by a pre-estimate; and an ex post facto discovery of error in the pre-estimate will not necessarily

1(1955) 93 C.L.R., at pp. 140-143. 2(1950) 339 U.S. 542 [94 Law. 3(1955) 93 C.L.R., at pp. 171-179. 99 CLR 47

mean that the pre-estimate was not genuine. When in respect of the amount of the charge it is said that it must be reasonable that means reasonable in relation to its nature and purpose. If a ton mileage rate is in question it must be reasonable as a pro- portionate contribution made by the description of vehicle by reference to which the contribution is fixed, that is to say a pro- portionate contribution to the recovery of those costs of upkeep the bearing of which by the traffic cannot be said to impair the free- dom of inter-State transport. Obviously a State cannot single out inter-State transport from transport generally for a particular charge. The places where a journey begins or ends have no bearing on the justness of a compensatory charge made for using the road.

The passage which as I have already said must be read into this judgment from that in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 1 concludes 2 with a reference to the diffi- culties necessarily arising in working out the distinction between, on the one hand, recompense or remuneration for the provision of a specific physical service of which particular use is made and, on the other hand, a burden placed on inter-State transportation in aid of the general expenditure of the State. The careful argu- ment in this case on the part of the plaintiffs was of course not directed to diminishing or solving the difficulties: but it had a particular value as an exposure of latent questions to which any practical measure must give rise. Nevertheless I am confirmed in the view that it is necessary to draw the distinction and ultimately to attempt to work out the conception SO as to allow of a charge compatible with real freedom because it is no more than a fair recompense for a specific facility provided by the State and used for the purpose of his business by the inter-State trader' " 3.

It will have been observed that the tonnage rate of one-third of a penny a mile is charged upon the whole journey by S. 26 and the fourth schedule of the Commercial Goods Vehicles Act. In the case of an inter-State journey it may well begin at the warehouse door of the suburb of a capital city and end in a country town of a neighbouring State. The beginning and the end of the journey may involve ill-made and insufficient streets and the middle of the journey a main road or State highway. Is a flat rate charge

justifiable for the whole journey ? At each end the State may have provided bad roads and, owing to their insufficiency, the axle weight of the vehicle may have done them great injury. The

1(1955) 93 C.L.R., at pp. 171-179. 2(1955) 93 C.L.R., at pp. 178, 179. 3(1955) 93 C.L.R., at p. 179. 99 CLR 48

OF A. middle of the journey may have been over an expensive but satis-

factory road and the wear and tear slight. Infinite variations of the theme are possible but this illustration is enough to make it clear. Is it consistent with the theory that a proper charge by way of compensation for using the roads is not incompatible with freedom of transit to impose a flat tonnage rate per mile in disregard [No. 2].

of all the varying roads and circumstances ? It is easy, in answer to the question, to say that the exigencies of a busy and practical world do not admit of any nicer treatment of individual cases. But such an answer may draw the retort that it only shows how impossible the distinction is. The point however is met by other considerations. There is only one charge it is true, a third of a penny a ton per mile. But it is not a flat rate per vehicle. The load capacity of the vehicle must, to begin with, be at least four tons. That implies a vehicle that is not light. As the load capacity goes up, the weight of the vehicle increases and SO does the amount payable. The limit of loaded weight in Victoria is an axle weight of 17,000 lbs. and for particular roads this may be reduced by proclamation; (see S. 32 (1) (g), (3) and (4) of the Motor Car Act 1951 (No. 5616) ). If you add to this the general probabilities to which conditions in Victoria give rise, it is a reasonable conclusion that, unless in relation to the more frequented inter-State routes the rate is excessive, then the complaint ought not to be made that it is excessive in relation to other highways.

In the next place it is to be noted that an arbitrary percentage (forty per cent) of the load capacity is adopted as that to be added to the tare weight. Is it 'reasonable' to adopt such a standard Does it satisfy the requirement that there should be a reasonable relation between the charge and the purpose, viz. a contribution to upkeep commensurate with the use made of the roads and the consequential wear and tear ? Here again general considerations must be taken into account. The loads carried by any given vehicle must vary. It is not "unfair" to calculate the charge on a basis which experience suggests as the likely average of the loads carried by vehicles, in a matter where exact statistical investigation and the assessment of each individual load are alike out of the question. By "unfair" is meant a course likely to result in an unwarranted burden upon the commercial journeys of individuals incommensurate with the purpose of obtaining no more than recompense for the use of the highway.

Then it was said that the Act was not expressed to be temporary, that it imposed a fixed rate without provision for change and, even if its amount appears now not to be incompatible with S. 92,

99 CLR 49

a change of conditions may give it an entirely different effect. To that it must be answered that if now there is no interference with the freedom of inter-State trade commerce and intercourse there cannot be any present violation of S. 92. If tomorrow the facts change SO that the operation of the enactment changes too and S. 92 is violated (an hypothesis making some demands on credu- lity) then S. 92 will doubtless prevail over it.

Next it was said that close consideration of the operation of S. 4 and the list in the second schedule and comparison with S. 25 (b) and the exemptions in the third schedule together with S. 25 (a) raise a sufficiently persuasive inference that the Commercial Goods Vehicles Act 1955 had for its real object the protection of the rail- way system. It appeared with enough certainty, SO it was said, that the right to a licence was given to intra-State traffic only where the railways do not provide its needs and that the incidence of the charge corresponded in pattern. It may be remarked that S. 4 and the second schedule go back in effect to the Transport Regulation Act 1933 (No. 4198) S. 22 (h) and third schedule. But as that Act had for one of its purposes the protection of the railways, perhaps the early beginning of these provisions is of little importance. What is of importance is that the argument is based on the policy attributed to exemptive and entitling provisions from their nature it is sought to give to the charge a complexion obnoxious to S. 92. It does not give any new or different feature or application to the charge. The argument seems to lack a sufficient basis for an adverse conclusion as to the motive of the legislature and even if the inference were drawn it would amount really to another example of reliance upon what Isaacs C.J. called " legislative mens rea" as a ground for bringing a statute within S. 92.

The most serious objection to the validity of the charge lies in the fact that it is named in the statute as an unexplained figure. If calculations are made with reference to imaginary journeys to the New South Wales or South Australian border from Melbourne of vehicles of various axle weights and loading capacities, it will be found that there is no prima facie reason for suspecting that the incidence of the charge is harsh or prohibitory. But there is no positive ground on the face of the legislation for associating the quantum of the rate with the actual cost of the maintenance and upkeep of Victorian roads. If it matters we were informed from the bar that no report or statement of figures was placed before the legislature showing the process by which the rate was reached. In these circumstances the defendants (the State of Victoria and the board) went into evidence for the purpose of proving that the rate

99 CLR 50

OF A. is not excessive but falls within the limits imposed by the considera-

tions to which I have adverted and that it is in the sense explained "reasonable". A first scrutiny of the basis of calculation seemed to justify the contention. But the closer criticism to which the evidence was subjected by Mr. Menhennitt greatly weakened its cogency. It would be tedious to go over the question in detail. [No. 2].

But there were some points made against the process of estimation with which I cannot agree. In the first place I think it was quite proper to disregard the fact that a proportion of road costs are met from rates. That cannot operate in relief of those using the roads for the purposes of their business. In the second place there is no reason for excluding from the figures for maintenance the estimate of what ought to have been expended but had not been expended. Nor is the argument sound as to the need of taking into account a correlative reduction in the ensuing year.

On the whole I think the defendants made out their case that the rate adopted in the fourth schedule of the Act was in fact of an order imposing upon the class of vehicles and owners falling within its application no more than a reasonable charge by way of compensa- tion or recompense for the use actually made of the roads; one falling fairly enough within the description of S. 26 (1), viz. to- wards compensation for wear and tear caused thereby to public highways in Victoria ".

charge to be reasonable would have to be based mainly upon the extent of the wear and tear the road would be likely to suffer from the projected journey" (1). "All traffic" he added, "light or heavy, presumably causes some wear and tear to the roads, but presumably also the heavier the vehicle the more wear and tear that is caused [No. 2].

to the roads. It is for the cost of this extra wear and tear, if any, that it would be reasonable to charge. It is probably not suscept- ible of any precise calculation. But an approximation should be possible" (1). Fullagar J. was of the opinion that persons using roads exclusively for the inter-State carriage of goods or passengers "may be called upon to make a contribution towards the cost of maintaining something from which they may fairly be regarded as deriving a benefit over and above that which is derived by the community as a whole. In making such a contribution they are not really paying a price for their coming and going. They are paying a price for something which makes their coming and going safer, easier, or more convenient than it would be if the highways which they use were allowed to fall into disrepair or decay" 2. But he foresaw serious difficulties in respect of both quantification and incidence in attempting to fix a contribution which would be valid and he did not endeavour to anticipate these difficulties except to say that any such charge in order to be valid must bear some real relation to the maintenance of the roads and must not discriminate against inter-State traffic 3. The general tenor of these observations leads me to think, however, that what his Honour had in mind was a charge commensurate with the benefit which such persons may be regarded as receiving over and above that which is received by the community as a whole.

Without attempting an examination of the ground, or grounds, upon which it was thought that the right to make such charges may be reconciled with S. 92 of the Constitution it may be said that there was some general agreement that the upper limit to road charges which may properly be exacted from persons operating vehicles in the course of inter-State trade is fixed by the concept of reasonableness. Fullagar J. did not use this expression but it would appear to be involved in his statement that " some real connection-some relation of quid pro quo-must appear between the charge and the maintenance of the roads" (3). But reasonable- ness, alone, is an abstract concept and does not by itself provide a test for determining what charges may or may not be made: it is a

1(1955) 93 C.L.R., at p. 194. 2(1955) 93 C.L.R., at p. 210. 3(1955) 93 C.L.R., at p. 211. 99 CLR 89

useful guide if, and only if, we are aware of the various matters which must be considered when the necessity arises of determining whether particular charges are or are not reasonable. Accordingly the joint judgment purports to specify those matters the charge must repre- sent the result of a real attempt to fix a reasonable recompense or compensation for the use of the highway and for a contribution to the wear and tear which the vehicle may be expected to make 1 and the various characteristics which will invest a charge with the appearance of such an attempt are specified in the passage from the joint judgment already quoted. I take the relevant passages in this judgment to mean that, in considering whether any particular charge is reasonable, it is permissible to inquire whether it can be said to have been based upon some pre-estimate of the damage which heavier vehicles are calculated to cause to the roads which they use. Williams J., on the other hand appears to have adopted a less liberal view. After pointing out that heavier vehicles pre- sumably cause more damage to the roads than lighter traffic he added that it was for the cost of the extra wear and tear that it would be reasonable to charge and, as already mentioned, the same idea seems to underlie the observations of Fullagar J.

In the present case the State of Victoria, it seems, has sought to base its legislation imposing the statutory charges in question upon the views expressed in the joint judgment. It has purported to impose on every vehicle of which the load capacity is more than four tons, a charge at the rate of one-third of a penny per ton of the sum of the tare weight of any such vehicle and forty per cent of its load capacity per mile of public highway along which any such vehicle may travel in Victoria and it has sought to support the charge by evidence that the specified charge will provide no more than a reasonable recompense or compensation for the use of the roads of the State by the vehicles in respect of which the charges are imposed or, in the alternative, not more than a reasonable contribu- tion to road maintenance for the wear and tear caused to such roads by those vehicles.

It is, perhaps, not out of place at this stage to say that the defend- ants did not take up the position that such evidence was needed to establish the validity of the statutory charge. But if the test is whether, upon ascertainable criteria, the charge may be said to be reasonable it would, it seems to me, be impossible to form a judg- ment on the critical question without evidence of the material matters. I do not see how any court could, without evidence of those matters, characterise a charge of one-third of a penny per

1(1955) 93 C.L.R., at p. 175. 99 CLR 90

OF A. ton-mile, or, for that matter, a charge of one-third of a shilling per

ton-mile, as reasonable or unreasonable.

The gist of the evidence which was adduced in the case is contained in an exhibit which furnishes a great deal of information concerning the number and classes of vehicles registered in Victoria (559,000) their estimated average annual mileages and ton mileages, a com- [No. 2].

parison of the cost of constructing and maintaining roads and highways for various classes of traffic and estimates of the degree of damage done to roads by heavy vehicles, that is to say, vehicles having an axle load of 8,000 pounds or more, or, approximately, a carrying capacity in excess of four tons. It is unnecessary to traverse the whole of this evidence but for the purposes of the observations which will shortly be made it is desirable to refer to some of the details. Of the 559,000 vehicles said to be registered in Victoria nearly 30,000 are vehicles having a carrying capacity of more than four tons and some unspecified number of the latter class of vehicles is engaged exclusively in inter-State trade. The roads of the State upon which vehicles registered in Victoria may lawfully operate extend over 80,000 miles and of such roads 3,850 miles are State highways and 9,789 miles are classified as main roads. The cost of the construction of roads designed to carry axle loads of up to 8,000 pounds is said to be twenty-three per cent less than the cost of roads designed for carrying heavier traffic. Maintenance costs, it is further said, should be apportioned on the same basis and the cost of necessary maintenance to the roads of the State in the year 1954-1955 was expressed to be £15,148,000 though the whole of this sum was not in fact spent. The annual ton-mileages of the heavier vehicles is said to represent fifty-one per cent of the annual ton-mileages of vehicles registered in Victoria and, up to a point, the exhibit referred to treats the degree of road damage occasioned by different classes of vehicles as proportionate to ton-mileage. After, in effect, charging against the heavier vehicles fifty-one per cent of seventy-seven per cent of the amount of £15,148,000 the exhibit treats the remaining twenty-three per cent of that sum as attributable solely to maintenance necessary as the result of damage done by the heavier vehicles. The result, namely £9,400,000 is said to be the cost of maintenance, during the year referred to, properly attributable to the heavier vehicles and it appears, after adjustments to which it is unnecessary to refer, that a rate of one-third of a penny per ton-mile imposed in respect of the heavier vehicles would not quite recoup this sum. Therefore, it is said, the charges are no more than a reasonable recompense or compensation for the use of the highways and for a contribution

99 CLR 91

to the wear and tear which such heavier vehicles may be expected to make.

The computations to which I have referred contain a great deal of surmise and conjecture and, perhaps, in some respects, represent even less than a loose judgment in fixing a quid pro quo But

I have no doubt that they represent, as far as it was possible to do so, an attempt to assess a reasonable charge on the basis of the views expressed in the joint judgment. Nevertheless, I am satisfied that they are insufficient to support the charges made by Pt. II. This opinion, I hasten to add, is based upon a broad consideration of the character of the computations themselves rather than upon criticism of the elements of surmise and conjecture upon which they may, in considerable measure, be said to be based.

The first observation which I wish to make is that I doubt whether the charges are based upon considerations consistent with the views which commended themselves to Williams and Fullagar JJ. They are not charges made for the extra damage done to the roads by heavier traffic nor are they charges commensurate with any benefit which the owners of heavier vehicles may be said to receive over and above that which is derived by the community as a whole; substantially, it may be said that analysis of the exhibit discloses that the specified rate has been imposed in an attempt to recoup to the State the cost of making good all wear and tear which, it is felt upon the assumptions made in the exhibit, may fairly be said to be attributable to the heavier forms of traffic.

But if, as was contended, a charge SO based is not open to objection there are, in my view, other reasons for holding that the evidence fails to establish that the charges which Pt. II of the Act seeks to impose are not "reasonable" in any sense in which that expression has, SO far, been used. In the first place, it will be observed that one vital factor taken into consideration in making the computations referred to is the cost to the State of maintaining some 80,000 miles of roads of all classes. State highways and main roads, however, constitute little more than 13,000 miles of these roads and there is nothing to give the slightest indication of the extent to which either these or other roads of the State are used by inter-State traffic. Nevertheless the computations proceed on the basis that it is fair and reasonable to make a charge against the owners of vehicles engaged in inter-State traffic based upon maintenance costs for every mile of roadway in Victoria. At this stage the computations, in my opinion, entirely break down for even if it may be said that charges may be imposed upon vehicles operated in the course of inter-State trade to compensate for the damage they occasion to

99 CLR 92

A. the roads which they use, I find it impossible to accept the proposi-

tion that a general charge for the maintenance of all roads through- out the State is compatible with S. 92. Indeed, a rate arrived at on this basis seems to wear, distinctly, the appearance of a tax for general road maintenance rather than recompense or compensation, reasonable or otherwise, for the use of the roads upon which such [No. 2].

vehicles are operated. It is, I think, nothing to the point to suggest that this objection is overcome by the fact that maintenance costs generally throughout the State have been charged against all heavier vehicles wherever and for whatever purpose they may be used for we have not the slightest idea of the respective quantities of heavy traffic on inter-State routes and other roads.

The matter is further complicated by the fact that the computa- tions ignore a factor which was most material in estimating both the percentage of road maintenance properly attributable to the use both in intra-State and inter-State of heavy vehicles and to the striking of a proper rate of charge for the purpose of recouping maintenance costs. As already appears the computed rate is based upon the number of heavy vehicles registered in Victoria and they ignore altogether vehicles which, though registered in other States, operate on Victorian roads in the course of inter-State trade. But the statutory rate if valid will be imposed not only upon vehicles

SO registered but upon all other heavy vehicles entering the State in the course of inter-State trade. If the omitted factor had been included the percentage of maintenance costs considered appropriate to be recouped from the owners of heavy vehicles may possibly have been higher but the rate of charge, itself, may well have been much lower. In these circumstances it appears to me that the computa- tions failed to take into account matters which are vital to the question whether the charges are reasonable" on any view and they leave this question completely unsolved. Accordingly I feel obliged to say that the evidence fails to satisfy me, upon any view that has SO far been taken, that the exaction prescribed by Pt. II is or can be said to be no more than "reasonable Par- ticularly is this SO when it is seen not only that the computations appear to spread road maintenance costs over a much too limited group but that the result of the legislation will be to require the owners of heavier vehicles entering Victoria from other States to make what is, in substance, a general contribution to road main- tenance throughout that State.

The result, even it if be assumed that there is some constitutional basis for the imposition upon inter-State traffic of road charges

99 CLR 93

which, upon some denotation of the term, may be said to be " reason- able is, in my opinion, that the statutory provisions which impose the charges in question must be held to have no application to persons operating vehicles exclusively in the course of inter-State trade.

The question whether the provisions of SS. 6 and 17 of the Motor Car Acts 1951-1956 can wholly apply to vehicles used exclusively in the course of inter-State trade is, I think, conclusively answered against the defendants by the decisions of this Court in Hughes &Vale Pty. Ltd. v. State of New South Wales [No. 2] 1; Nilson V. State of South Australia 2 and Pioneer Tourist Coaches Pty. Ltd. V. State of South Australia 3, and I agree that the appropriate form of declaration which should be made concerning these provisions is that proposed by the Chief Justice.

Declare that sub-s. (4) of S. 6 of the Motor Car Act

1951 (No. 5616) and sub-pars. (b) and (c) of par. B of the second schedule as substituted by Act No. 6038 cannot apply to commercial goods vehicles used on highways in Victoria not otherwise than in the course of trade and com- merce among States and in what is necessarily incidental thereto and that S. 17 cannot apply so as to make it an offence for a person to drive a commercial goods vehicle exclusively so used without complying with the requirement of S. 6 that the vehicle shall be registered and a fee shall be paid pursuant to sub-s. (4) of that section. Order that the plaintiffs pay the defendant's costs of

the action except such costs as are exclusively referable to the claim of the plaintiffs in relation to the invalidity of the application to the plaintiffs of so much of the Motor Car Act 1951 as amended as requires the payment of the fees set out in the second schedule of that Act on registration which costs are to be paid by the defendants. Costs to be set off. Solicitors for the plaintiffs, Alexander Grant, Dickson &King. Solicitor for the defendants, Thomas F. Mornane, Crown Solicitor for the State of Victoria.

1(1955) 93 C.L.R. 127. 2(1955) 93 C.L.R. 292. 3(1955) 93 C.L.R. 307