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

The proceedings before the High Court of Australia involved three separate matters: *Philip Morris Limited & Ors v Commissioner of Business Franchises & Anor; Coastace Pty Limited & Anor v State of New South Wales & Ors*; and *Harper v Minister for Sea Fisheries*. The applicants in these cases, including tobacco manufacturers and distributors, and a fishing business, were challenging the validity of certain state legislation and the imposition of business franchise fees. The core dispute concerned whether these fees constituted an unlawful tax on the sale of goods, contrary to Chapter IV of the Australian Constitution, specifically section 92 which guarantees freedom of interstate trade, commerce, and intercourse.

The primary legal issue before the Court was whether the business franchise legislation in Victoria, New South Wales, and Tasmania, which imposed fees on businesses involved in the sale of tobacco and, in one instance, fishing licences, were invalid. The applicants contended that these fees were in substance taxes on the sale of goods, thereby infringing section 92 of the Constitution. The Court was required to determine whether the previous High Court decisions in *Dennis Hotels Pty Limited v Victoria*, *Dickenson's Arcade Pty Limited v Tasmania*, and *H.C. Sleigh Limited v South Australia* were applicable to the present circumstances, or if the facts of these cases presented grounds for distinguishing them from the earlier precedents.

The Chief Justice, Mason CJ, indicated that the Court, with the exception of Justice Deane, did not intend to reconsider the correctness of the decisions in *Dennis Hotels*, *Dickenson's Arcade*, and *H.C. Sleigh*. However, counsel for the applicants was permitted to argue that the present cases could be distinguished from the earlier authorities. This involved presenting arguments that the applicants, as wholesalers and producers, occupied a different position to the parties in the previous cases, and that the legislation in question should be confined in its application so as not to impose a tax on a producer in the course of business. The Court acknowledged that it was open to counsel to present arguments distinguishing the current cases from the established precedents, with the ultimate determination of the validity of those arguments resting with the Court.