HIGH COURT OF AUSTRALIA
Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
H.C. SLEIGH LTD. v. SOUTH AUSTRALIA
1 February 1977
Constitutional Law (Cth)
Constitutional Law (Cth)—Duties of excise—Exclusive power of Commonwealth Parliament—Petroleum vendor's licence fee imposed under State law—Fee calculated on sales in period preceding licence period—Validity—The Constitution (63 &64 Vict. c. 12), s. 90—Business Franchise (Petroleum) Act, 1974-1975 (S.A.). Constitutional Law (Cth)—Freedom of interstate trade and commerce—Prohibition of sale of petroleum products without licence—Licence fee—Interstate trade and commerce—Sales made in interstate trade—Interstate trade—Standing of person engaged only in intrastate trade to impugn validity of legislation on ground of infringement of s. 92 of Constitution—Partial invalidity—Severance—Construction of statute so as not to infringe Constitution—The Constitution (63 &64 Vict. c. 12), s. 92—Business Franchise (Petroleum) Act, 1974-1975 (S.A.), ss. 11, 13, 14—Acts Interpretation Act, 1915 (S.A.), as amended, s. 22a.
Decisions
1977, Feb. 1.
The following written judgments were delivered: -
BARWICK C.J. The Court has now decided to maintain the decision of Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529 , for what, upon its facts and relevant legislation, it decides. Consequently, legislation operating in indistinguishable terms will be supported as not imposing a duty of excise. This course does not commit the Court to accept the reasoning in that case. The result, as I think, tends to put a premium on drafting ingenuity and is a disregard of substance. Further, the practical distinction between a licence fee rated on the sale of a former period and such a fee rated on the sales of the licensed period, vis-a-vis the effect of the imposition of the fee upon the movement of goods into consumption, is difficult to see, particularly in the case of a continuing business operating over a period of years. However, I am unable to find any substantially distinguishing feature of the Business Franchise (Petroleum) Act, 1974-1975 (S.A.) ("the Act"). I therefore agree that this case is governed by the decision in Dickenson's Arcade Pty. Ltd. v. Tasmania (1974) 130 CLR 177 , and that the licence fee imposed by that Act does not constitute an excise within the meaning of s. 90 of the Constitution. (at p488)
2. I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I am in substantial agreement with the reasons he expresses for his conclusions; first, that the licence fee under challenge in the case is not an excise; second, that the refinery exchange arrangements set out in the statement of claim, the sales referred to in pars 24 and 25 of the statement of claim, and the transactions described in pars 28, 29 and 30 of the statement of claim do not form part of interstate trade; third, that the prohibition in the Act of carrying on the business of selling without a licence infringes s. 92 of the Constitution; fourth, that the penalty imposed upon carrying on such a business without a licence infringes s.…
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- Case
- [1977] HCA 2
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the regulations, specifically those imposing a levy on petroleum products, were authorised by the *Petroleum Products Regulation Act 1967* (SA). This involved an examination of the Act's provisions to determine the extent of the power granted to the Executive Council to make regulations and whether the levy fell within that delegated authority.
The Court, in its joint judgment, held that the regulations were invalid. It reasoned that the Act did not confer power to impose a levy on petroleum products for the purpose of raising revenue. The power to make regulations was limited to matters of regulation and control of petroleum products, not to the imposition of taxes or levies. The Court applied the principle that delegated legislative power must be exercised within the confines of the empowering statute, and that any attempt to exceed that authority would render the subordinate legislation invalid. The appeal was allowed, and the regulations were declared invalid.
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