Philip Morris Limited & Ors v Commissioner of Business Franchises & Anor; Coastace Pty Limited & Anor v State of New South Wales & Ors; Harper v Minister for Sea Fisheries

These proceedings involved three separate cases heard together by the High Court of Australia. The first case, *Philip Morris Limited & Ors v Commissioner of Business Franchises & Anor*, concerned challenges by tobacco companies to the validity of business franchise licences imposed by the State of Victoria. The second case, *Coastace Pty Limited & Anor v State of New South Wales & Ors*, involved similar challenges to business franchise licences in New South Wales. The third case, *Harper v Minister for Sea Fisheries*, concerned a challenge to fees imposed by the State of Tasmania relating to sea fisheries.

The central legal issue before the High Court was whether the business franchise licence fees, particularly the ad valorem component, imposed by the respective states were invalid as contravening section 90 of the Australian Constitution. Section 90 of the Constitution grants the Commonwealth Parliament exclusive power to impose customs and excise duties. The plaintiffs argued that the ad valorem fees, which were calculated based on the value of goods sold, constituted excise duties and were therefore beyond the legislative power of the states.

The Court's reasoning focused on the nature of the fees imposed. The Solicitor-General, representing the plaintiffs in the *Philip Morris* case, indicated that they would not pursue an argument that would require reopening previous decisions. Instead, their primary argument was that the ad valorem component of the business franchise licence fee was invalid as an excise duty, while the lump sum component of the licence fee remained valid. The Court considered whether the invalidity of the ad valorem fee would render the entire licensing scheme invalid or if the provisions could be severed.

The outcome of the proceedings, as indicated by the Solicitor-General's submissions, was that if their argument succeeded, the relevant provisions of the legislation would be declared invalid only in respect of the imposition of the ad valorem fee, with the lump sum fee remaining valid. The Court also considered whether certain questions posed in the case stated were too wide or unnecessary to answer, depending on the determination of the primary issue of constitutional validity.