Chief Executive Officer of Customs v Carlton & United Breweries Ltd

[1997] FCA 433

C A T C H W O R D S

EXCISE - Excise Tariff Act - Schedule - spirits - spirituous beverage - alcoholic beverage derived from product of distillation mixed with water and flavouring - low concentration of alcohol - whether a dutiable spirituous beverage.

STATUTORY INTERPRETATION - revenue statutes - approach to construction - trade usage - ordinary meaning.

Excise Tariff Act 1921 s.2, s.5, s.154
Distillation Act 1901 s.6
Spirits Act 1906
National Food Authority Act 1991

Quick and Garran’s The Annotated Constitution of the Australian Commonwealth, The Australian Book Company, 1901.

Collector of Customs v. Agfa Gevaert Ltd (1996) 141 ALR 59
Herbert Adams Pty Ltd v. Federal Commissioner of Taxation 1932) 47 CLR 222

Ex parte Chum Gun (1909) 26 WN (NSW) 43
Peterswald v. Bartley (1904) 1 CLR 497

CHIEF EXECUTIVE OFFICER OF CUSTOMS v. CARLTON AND UNITED BREWERIES LIMITED
VG 386 of 1996

French J
Melbourne
7 May 1997

IN THE FEDERAL COURT  )
OF AUSTRALIA  )
VICTORIA DISTRICT REGISTRY  )
GENERAL DIVISION  )          No. VG386 of 1996

On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy  President G.L. McDonald and Mr R.C. Gilham Member

B E T W E E N :  CHIEF EXECUTIVE OFFICER OF
  CUSTOMS

Applicant

and

CARLTON AND UNITED
  BREWERIES LIMITED

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:          French J
DATE OF ORDER:  7 May 1997
WHERE MADE:  Melbourne

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The Applicant to pay the Respondent’s costs of the application.

Settlement and entry of these orders is dealt with in Order 36 of the Federal         Court Rules.

IN THE FEDERAL COURT   )
OF AUSTRALIA  )
VICTORIA DISTRICT REGISTRY  )
GENERAL DIVISION  )          No. VG386 of 1996

On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy  President G.L. McDonald and Mr R.C. Gilham Member

B E T W E E N :  CHIEF EXECUTIVE OFFICER OF
  CUSTOMS

Applicant

and

CARLTON AND UNITED
  BREWERIES LIMITED

Respondent

INTRODUCTION

In October 1994, Carlton and United Breweries Limited (“CUB”) made a public announcement that it was to launch a new alcoholic beverage called “Subzero Alcoholic Soda”.  In November 1994, a delegate of the Collector of Customs decided that the product was subject to excise duty as a “spirituous beverage” under the Schedule to the Excise Tariff Act 1921. Demands for payment were made accordingly. CUB made deposits of the excise duty with the Collector under s.154 of the Excise Act on 29 November and 5 December 1994 respectively.

On 26 May 1995, CUB made an application to the Administrative Appeals Tribunal under s.162C(2) of the Excise Act 1901 for review of the delegate’s decision to make the demands for payment. The stated reason for the application was that the demands under review were in error because they were made on the basis that the product was excisable at the rate applicable to a spirituous beverage under the Schedule to the Excise Tariff Act when it was not a spirit and therefore not a spirituous beverage. 

The application was heard by a Deputy President and Member of the Administrative Appeals Tribunal on 30 May 1996 and on 7 June 1996 the Tribunal set aside the decision under review. The matter was remitted to the Chief Executive Officer of Customs with a direction that Subzero Alcoholic Soda was not a spirituous beverage for the purposes of cl.(H) of Article 2 of the Schedule to the Excise Tariff Act 1921. An appeal is now brought under s.44 of the Administrative Appeals Tribunal Act against the Tribunal’s decision.

Statutory Framework

Section 5 of the Excise Tariff Act 1921 imposes duties of excise as specified, and in accordance with, the Schedule to that Act. In Article 2 of the Schedule under the general heading “Spirits” there appear the following items:

“2.Spirits -

(A)      Brandy  $21.74 per litre of alcohol

(C)      Fruit Brandy  $25.47 per litre of alcohol

(D)      Whisky  $25.47 per litre of alcohol

(F)       Rum  $25.47 per litre of alcohol

(G)Liqueurs:

(1)As prescribed by By-law  $25.47 per litre of alcohol

(2)  Other  $26.15 per litre of alcohol

(H) Spirituous beverages:

(1)As prescribed by By-law   $25.47 per litre of alcohol

(2)  Other  $26.15 per litre of alcohol

(J)Spirit for fortifying Australian wine or for

fortifying Australian grape must, subject

to regulations  Free

(M)Spirit for industrial and scientific purposes,

n.e.i., subject to regulations  Free

(N)Methylated spirits, subject to regulations                  Free

(O)      Spirits, n.e.i.  $26.15 per litre of alcohol

(P)Spirit for scientific or educational purposes

subject to regulations -

(1)For use in Universities  Free

(2)For use in approved Technical Colleges

or other educational institutions

prescribed by By-law  Free

(Q)Spirit for use in public hospitals, or for use in

the manufacture of medicinal preparations for

use in public hospitals and universities, subject

to regulations  Free

(R)Denatured ethanol for use as a fuel in internal

combustion engines, as prescribed by By-law           Free      

Article 1 of the Schedule deals separately with beer.  The only other item relating to alcoholic beverages in the Schedule is Article 18 which deals with “Ale, porter and other beer, brandy, whisky, rum, gin, liqueurs, tobacco, cigars and cigarettes” for consumption on naval vessels.

The term “spirituous beverage” is defined in a preamble to the Schedule to mean:

“(a)Vodka; or

(b)  A spirituous beverage that is manufactured by mixing, compounding or blending spirit with ingredients other than caramel or water.”

The preamble to the Schedule also provides definitions of other spirits mentioned in Article 2 in the following terms:

“Brandy” means a spirit distilled from wine in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to brandy, being a spirit that contains not less than 25% of spirit distilled at a strength of not more than 83% by volume of alcohol.

“Fruit Brandy” means a spirit obtained by distillation of a fermented liquor derived from fruit but not grapes.  The distillate shall possess the taste, aroma and characteristics generally attributed to fruit brandy according to the type of fruit from which it is made.

“Liqueur” means the product obtained by mixing or by distillation of spirit with or over fruits, flowers, leaves or other vegetable substances or their juices either singly or in combination or with extracts derived by distillation, infusion, percolation or maceration of such vegetable substances and containing not less than 25 grams per litre of sugars and not less  than 17% alcohol by volume.

“Rum” means a spirit obtained by the distillation of a fermented liquor derived from the products of sugar cane, being distillation carried out in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to rum.

“Whisky” means a spirit obtained by the distillation of a fermented liquor of a mash of cereal grain in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to whisky.”

By s.2 of the Excise Tariff Act certain acts are to be “read as one” with it.  These include the Distillation Act 1901. The latter Act is expressed to apply to the distillation of spirits on which any duty of excise is imposed by the Parliament (s.4). By s.6, “spirits” is defined thus:

“ “Spirits” includes any liquor on which under the name of spirits, any duty of Excise is imposed by the Parliament, whether the liquor is distilled or made or in any stage of distillation or making.”

The Act regulates the manufacture, sale and importation of stills (s.10), their use for purposes other than the distillation of spirits (s.11) and their maximum capacity (s.11A).  A licensing regime to control the distillation of spirits is established which provides for spirit makers’ licences, vignerons’ licences and experimenters’ licences (Part III).  Distilleries are regulated by Part IV and provision made to regulate the removal of spirits and the calculation and payment of duty (Part V).  There are also provisions relating to Vignerons’ stills (Part VI), the fortification of Australian wines with spirits (Part VIA), the powers of officers (Part VII) and penalties for breaches of the Act (Part VIII).

Section 5 of the Act, which is relied upon in the present case, provides:

“5.  For convenience in interpreting this Act the present ordinary course of and in connexion with the distillation of spirits is outlined as follows:

(i)The material is mashed in a mash tun.  The liquor product is wort.

(ii)The wort is fermented in a back.  The liquor product is wash.

(iii)The wash is distilled in a still by heating to evaporation and condensing the vapor.  The liquor product is spirits and the residue of the wash is spent wash.

(iv)The spirits pass into a receiver which may be of three kinds.

(a)Low wines receiver for the receipt of low wines.  These are spirits of the first extraction requiring further distillation.  All spirits received into a low wines receiver are low wines.

(b)Feints receiver for the receipt of feints.  These may include low wines and are spirits requiring further distillation.  All spirits received into a feints receiver are feints.

(c)Spirits receiver for the receipt of spirits not requiring further distillation.

(v)When liquor has been previously fermented it can be immediately utilized as wash.”

Section 6 of the Act includes a definition of the word “Still” which means “any apparatus for or capable of distilling spirits and any part thereof and any apparatus connected or used in connexion therewith.”

The Tribunal’s Decision

The Tribunal heard evidence about the product “Subzero” and the process for its production from Dr. R. Peel, a Chemical Engineer employed by CUB.  It also heard about retail trade usage from Mr Terry Pacini, a liquor store proprietor and previously National Supply Manager for a major catering business.  Dr.  G.W. Stevens, a Reader in Chemical Engineering at the University of Melbourne gave evidence about the characterisation of the process as distillation and its product as a spirit.

Subzero, as the Tribunal found, is made from an alcoholic condensate, approximately 13% alcohol by volume to which water and citrus flavouring are added.  The resulting product, which is carbonated,  has an alcohol content of 5.5% by volume.

The alcoholic condensate which forms the basis of Subzero is a by-product of the manufacture of low alcohol or “light” beer from normal strength beer in a plant known as a “de-alcoholisation of beer” or DAB plant.  As appears from uncontested evidence given by Dr. Peel, the principal purpose of the plant is to use a low pressure and therefore low temperature evaporative process to reduce the alcohol content of normal strength beer without destroying the ingredients which give it its distinctive flavour.

The feed material, being normal strength Fosters beer, is heated to a temperature of about 40°C and passed through three sets of Falling Film Plate Evaporators.  Each of these components, which together form the major part of the DAB Plant, consists of a pair of closely spaced parallel metal plates in a vacuum.  The beer, in droplet form, passes between the first two plates which are heated by steam not in contact with the beer.  The heat from the plates causes the droplets to partly evaporate.  The discharge from the plates is a high velocity stream of alcohol enriched vapour and alcohol reduced beer in liquid form. 

The stream is passed into a separator.  The beer falls to the base of the separator and is pumped through to the next Evaporator.  The alcohol enriched vapour is carried through to heat subsequent Evaporators instead of steam and thus achieve energy efficiency.  The subsequent Evaporators further reduce alcohol levels in the beer stream.  A refinement of the sequence involves passing the liquid beer stream twice through each Evaporator unit.

At the end of the sequence two liquids remain.  One is the reduced alcohol beer which is the primary valuable product of the DAB Plant.  A mixture of 50% of that product and 50% full strength Fosters Lager is made to produce Fosters Light Beer which contains 2.5% alcohol by volume.

The condensate is blended with water and citrus flavouring and is carbonated to yield the product known as Subzero which, as noted earlier, has an alcohol content of 5.5% by volume.

The Tribunal accepted that Subzero is properly described as a “beverage” for the purposes of the Schedule to the Excise Tariff Act. It found that the DAB Plant, using an evaporative process to yield an alcohol enriched condensate, was a still for the purpose of the very broad definition of “Still” appearing in s.6 of the Distillation Act 1901. Moreover the process of production of the condensate was a process involving distillation notwithstanding that it did not fall within the description of the “ordinary course of ... the distillation of spirits” set out in s.5 of the Act. That description was, in the Tribunal’s opinion, a convenient outline but not a definitive exposition of the process of distillation.

The Tribunal considered whether or not Subzero could be characterised as a “spirit”.  It accepted that historically and  at common law the word “spirits” referred to strong alcoholic liquor and had that accepted meaning when the Distillation Act was passed.  While acknowledging the difficulty of drawing a line between alcoholic liquor and strong alcohol liquor, the Tribunal said the term was clearly referable to products such as whisky, brandy, gin and vodka, each of which has an alcohol content of not less than 37%.

Current definitions, whether by reference to trade usage, evidence of which had been given by Mr Pacini, or ordinary meanings derived from dictionaries, were determined by reference to alcoholic content.  The Tribunal concluded:

“It is plain that Subzero with an alcohol content of 5.5% alcohol by volume, would not ordinarily be classified under any of the above as a “spirit”.”

The Tribunal gave consideration to other statutes dealing with spirits, none of which offer any comprehensive definition of the term “spirits” or “spirit”.  It noted the provisions of the Spirits Act 1906. Reference was also made to Standards P3 and P5 made under the provisions of the National Food Authority Act 1991.

Accepting that the word “spirit” will take its meaning according to its context, the Tribunal “dealing with the term as a spirituous beverage” said it should be given the meaning relevant to that context.  Ordinary meaning, trade usage and Food Standard Code definitions led to the conclusion that “spirit” in this context means strong alcoholic liquor usually containing not less than 37% alcohol by volume. 

Grounds of Appeal

There were eleven grounds of appeal, largely related to the Tribunal’s construction of key terms in the Excise Tariff Act and Distillation Act. A Notice of Contention challenged the Tribunal’s conclusion that the description of “distillation” in s.5 of the Distillation Act was not definitive of that term.

The Collector’s contention, however, reduced the various appeal grounds to one question: Did the Tribunal misconstrue the definition of “spirituous beverage” in Article 2 of the Schedule to the Excise Tariff Act 1921?

The Contentions

It was submitted by the Collector of Customs that contrary to the Tribunal’s conclusion a product need not be a strong alcoholic liquor in order to be a spirituous beverage.  It is sufficient that it be an alcoholic beverage which contains spirit and is manufactured by mixing, compounding or blending spirit with ingredients other than caramel or water.  No minimum alcoholic strength is required for either the spirituous ingredient or the final product.

Once the Tribunal had found that the alcoholic condensate used in Subzero was produced by a process of distillation, it was bound to hold the condensate to be a spirit within the meaning of the Schedule and Subzero therefore to be a spirituous beverage and dutiable as a spirit.

The Excise Act 1921 and the Distillation Act 1901 form a code. The Spirits Act 1906 is not part of that legislative scheme. The definition of “spirit” in the Distillation Act confirms the impression conveyed by s.5 of that Act that any condensate product of distillation is a spirit regardless of its alcoholic strength.  Moreover the ordinary meaning of the word “spirituous” as applied to beverages does not connote high alcoholic strength.

CUB submitted on the other hand, that in construing the composite term “spirituous beverage” the Tribunal necessarily sought to interpret the word “spirit” because the definition in this respect was circular.  It applied the meaning ordinarily used in the alcoholic beverage industry and found this to be the same as the ordinary meaning and the meaning in related contexts, namely a strong alcoholic liquor.  This accorded with the commonsense approach encouraged by the High Court in Collector of Customs v. Agfa Gevaert Limited (1996) 141 ALR 59.

The definition of spirits in the Distillation Act 1901 was said to be inclusive and to suggest that traditional nomenclature is important. That traditional meaning was illustrated by the words of Pring J in Ex parte Chum Gun (1909) 26 WN (NSW) 43 at 44:

“I think spirits mean what we all understand by spirits, that is whisky, brandy, rum and drinks of that kind.”

The Collector’s propounded construction of spirituous beverage was criticised as highly artificial and as including any beverage containing any alcoholic product of distillation whatever the character of the final product.  Moreover, each of the defined terms in the Schedule was said to share the attribute of  high alcoholic strength.

The Question of Construction

The history of excise duties goes back to 17th century England when they were imposed initially on beer, ale, cider, cherry wine and tobacco.  Later other products were added.  As Quick and Garran observe in the Annotated Constitution of the Australian Commonwealth at 837:

“The fundamental conception of the term is that of a tax on articles produced or manufactured in a country.  In the taxation of such articles of luxury as spirits, beer, tobacco and cigars, it has been the practice to place a certain duty on the importation of these articles and a corresponding or reduced duty on similar articles prepared or manufactured in the country; and this is the sense in which excise duties have been understood in the Australian colonies and in which the expression was intended to be used in the Constitution of the Commonwealth.”

This was described in the judgment of the High Court in Peterswald v. Bartley (1904) 1 CLR 497 at 509, “as far as we know, a correct historical statement of the use and growth of the term in England”. There is in that understanding no necessary limitation on the subjects of excise. That excises have been applied traditionally to beer and spirits, the latter in the sense of strong alcoholic liquor, does not mean that they cannot be applied more widely. Nor does it mean that excise legislation cannot be enacted to pick up a wide range of alcoholic drinks.

The question for the Tribunal in this case was whether or not Subzero is a “spirituous beverage”.  Its reasoning focussed on the question whether Subzero is a spirit and on the proper interpretation of that word in this setting.  In that approach, in my opinion, the Tribunal was substantially correct for the two questions effectively reduced to one.  The Tribunal put it thus at p.20 of its reasons:

“It is clear from the above analysis of the legislation that the word “spirits” may have a different meaning depending upon the context in which it is used.  The dichotomy is apparent in the difference between the two definitions contained in the Macquarie Dictionary, numbers 22 and 23, ....  It is accorded both a chemical meaning for scientific purposes (definition 22) and another meaning when used in the alcohol beverage industry (definition 23) in the same dictionary.  Since in this case the Tribunal is dealing with the term as a “spirituous beverage”, it should be given the meaning generally accorded to it when used in that context.”

Article 2 of the Schedule, as its heading indicates, is concerned with a class of commodity which falls within the general description of “Spirits”. Within that class there are two subclasses, potable spirits being those described in items (A) to (J) inclusive and spirits for scientific, industrial or educational purposes which are referred to in items (M) to (R) inclusive.

The term “spirituous beverages” identifies a category of potable spirits wide enough to encompass spirits other than those referred to in the preceding items of Article 2. It contemplates the possibility of spirits mixed with other ingredients. The exclusion of water from the class of relevant ingredients excludes the possibility that a mixture of spirit and water, not ordinarily to be regarded as a spirit, could be so regarded by virtue of the definition. That is to say a diluted spirit, reduced in strength by the addition of water does not, merely because it contains spirit, become a spirituous beverage.

Let it be assumed that the DAB process which yielded the enriched alcoholic condensate is, as the Tribunal found, a process of distillation.   And let it be assumed that the condensate is therefore to be regarded as a “spirit” for the purposes of the Excise Tariff Act.

The use of that spirit in a mixture with water does not, because it is a spirit, require that the mixture be so characterised. Strictly speaking, the question is whether the mixture of condensate and water is a spirit which, mixed with other ingredients, citrus flavouring and carbon dioxide, is thereby a “spirituous beverage”. For all practical purposes however, the question becomes - is Subzero Alcoholic Soda a “spirit” within the subclass of spirits identified as spirituous beverages for the purposes of Article 2?

The exclusion of spirits diluted with water from the definition of “spirituous beverage” for the purposes of the Schedule is consistent with a legislative intent to confine dutiable, potable spirits to drinks of a strong alcohol content.  The definition itself contemplates that in ordinary parlance “spirituous beverages” might include beverages manufactured by mixing spirits with water.  But that sub-class of spirituous beverage is excluded for the purposes of the Schedule. 

The meaning to be attributed to the description of a class of dutiable goods in revenue legislation will depend upon the language which is used and the context in which it appears.  The High Court in Collector of Customs v. Agfa Gevaert Ltd (1996) 141 ALR 59 at 66 stated that when construing revenue statutes that utilise trade or technical terms, the law generally favours interpretation of the terms as they are understood in the trade to which the statute applies. The Court referred to the observation of Dixon J. in Herbert Adams Pty Ltd v. Federal Commissioner of Taxation (1932) 47 CLR 222 at 227 that:

“A revenue law directed to commerce usually employs the descriptions and adopts the meanings in use among those who exercise the trade concerned.”

Nevertheless the Court cautioned that the “presumption” in favour of trade meaning in revenue statutes does not deny the possibility that words used in a revenue statute directed to commerce are to be understood in their ordinary meaning.

Having regard to the definition of “spirituous beverage” in the Schedule a finding that the alcoholic condensate used in the manufacture of Subzero was a product of distillation and, if it be a corollary of that, that it was a spirit, did not answer the question whether Subzero is a spirit. That depends upon the meaning to be given to spirits in the heading to Article 2 in its application to potable spirits.

The Tribunal made a finding as to trade usage, said by the Collector to be irrelevant because it was the usage of retailers rather than manufacturers of spirits.  It is difficult to imagine why there should be a distinction.  In any event the Tribunal accepted that the characteristics of a spirit relevant for the purposes of the Schedule were those to be found in generally accepted notions as evidenced by dictionary definitions.  And that coincided with such evidence as was given by Mr Pacini of trade usage.  Although it is apparent that when extended to non-potable substances used for scientific, industrial, educational and other purposes, the term “spirits” has a wider connotation that is not the sense in which the sub-class of potable spirits covered by items (A) to (J) is to be understood.

The relevant ordinary meanings of the word “spirit” in the Oxford English Dictionary are:

“21 a.  A liquid of the nature of an essence or extract from some substance, esp. one obtained by distillation; a solution in alcohol of some essential or volatile principle.

b.  Without article: Liquid such as is obtained by distillation, spec. that which is of an alcoholic nature.  Also pl.

c.   Orig. pl. Strong alcoholic liquor for drinking, obtained from various substances by distillation; sing. any particular kind of this.

.

.

.

22.An essence, distilled extract, or alcoholic solution, of a specified substance.  Freq. pl., esp. in later use.”

The Macquarie Dictionary irrelevantly defines “spirit” as follows:

“22. Chem. a. an aqueous solution of ethyl alcohol, esp. one obtained by distillation. b. the essence or active principle of a substance as extracted in liquid form, esp. by distillation. 23. (oft. pl) a strong distilled alcoholic liquor.”

In my opinion both dictionary definitions point to ordinary usage of the term “spirit” in its application to the sub-class of potable spirits, as referring to a strong alcoholic liquor or drink.  This is to be distinguished from the chemical or process derived definition which is not directed to the sub-class of potable spirits.

The specific potable spirits identified in items (A) to (G) of Article 2 tend to support the conclusion that the class of potable spirit generally contemplated by Article 2 is a strong alcoholic drink.

The definition of liqueur provides for a spirit mixed with other specified substances.  It establishes, nevertheless, a minimum concentration for liqueurs of 17% alcohol by volume.  This indicates that the concentration of alcohol in spirits, referred to in the definition, will be higher.

The Distillation Act 1901, applies only to the distillation of spirits on which any duty of excise is imposed by the Parliament (s.4). Although the Excise Tariff Act is to be read as one with the Distillation Act 1901, the latter Act begs the question of what is a dutiable spirit? That follows also from the definition of spirits in s.6 of that Act which refers to “any liqor on which, under the name of spirits, any duty of Excise is imposed by the Parliament, whether the liqor is distilled or made in any stage of distillation or making”.

The Spirits Act 1906 contains no definition of “spirits”. It regulates the description of potable spirits, specifically Australian standard and blended brandy and whisky, Australian standard rum and brandy generally. Minimum standards for maturation of imported and Australian spirits are specified with the exclusion of a number of named spirits all of which appear to fall into the category of strong alcoholic drinks.

The Spirits Act has no direct bearing upon the present case beyond its consistency with the concept of potable spirits in ordinary usage as strong alcoholic drinks.

Some reliance was also placed by the Tribunal upon usage in the Food Standards Codes adopted by the National Food Standards Council under the National Food Authority Act 1991. In Part P, dealing with Alcoholic Beverages, Standard P3 relating to spirits and liqueurs defines spirits thus:

“(1)(a)Spirits are potable alcoholic distillates, produced by distillation of fermented liquor derived from food sources.

(b)Save where otherwise prescribed by this Standard, spirits shall contain not less than 370mL/L at 20°C of ethanol.”

The Standard is applied to Grape Spirit, Brandy, Fruit Brandy, Whisky, Rum, Gin, Vodka, Tequila, Grappa and Liqueurs.  The minimum alcohol concentration in liqueurs is, as in the Schedule to the Excise Tariff Act, 17% by volume.  The minimum  requirement for brandy is also as in the Schedule.

The definition and prescribed minimum concentrations set out in the Food Standard are again of marginal significance to the present case beyond being consistent with the proposition that for manufacturing purposes as for duty purposes, the current concept of potable spirits relates to strong alcoholic drinks.

In the end, the question whether a beverage is a “spirit” and a “spirituous beverage” for the purposes of the Schedule is a question of fact.  I consider the Tribunal applied the correct general test that a spirituous beverage for the purpose of the Schedule is a strong alcoholic drink. And while not expressing an opinion on the question whether a line is to be drawn at a particular percentage of alcohol, I consider that so construed the definition of “spirituous beverage” and “spirit” does not extend to a beverage comprising 5.5% by volume of alcohol.

In my opinion the appeal should be dismissed with costs.

I certify that this and the preceding
  fourteen (14) pages are a true copy of the
  Reasons for Judgment of his Honour
  Justice R. French.

Associate:
  Date:

Solicitors for the Applicant:  Australian Government Solicitor
Counsel for the Applicant:  Mr A. Cavanough QC

Solicitors for the Respondent: Corrs Chambers Westgarth
Counsel for the Respondent:  Mr Kevin Bell

Date of Hearing:        5 May 1997
Date of Judgment:      7 May 1997