“Section 90 of the Constitution of Australia”的意思、由来-开放百科全书

Section 90 of the Constitution of Australia prohibits the States from imposing customs duties and of excise. The section bars the States from imposing any tax that would be considered to be of a customs or excise nature. While customs duties are easy to determine, the status of excise, as summarised in Ha v New South Wales, is that it consists of "taxes on the production, manufacture, sale or distribution of goods, whether of foreign or domestic origin."^[1] This effectively means that States are unable to impose sales taxes.

Whether a State tax is of an excise nature or not has been the subject of numerous cases in the High Court of Australia, and it has had difficulty in reaching a clear majority opinion as to how "excise" should be interpreted in specific circumstances.{{sfn|Gray|1997|p=53}} It has been described as "one of the significant failures of the High Court."{{sfn|Caleo|1987|p=296}}

Text

On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, One thousand eight hundred and ninety eight, and not otherwise.^[1]|}}

Scope

Starting with Peterswald v Bartley (1904), it was initially held that "excise" is an indirect tax, and is accordingly based on the definition given by John Stuart Mill:

Taxes are either direct or indirect. A direct tax is one which is demanded from the very persons who it is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another; such are the excise or customs.^[2]

However, since Dennis Hotels Pty Ltd v Victoria, it has been held that indirectness is neither a necessary nor sufficient quality for such a tax.{{sfn|Caleo|1987|pp=303{{endash}}304}}

Since the High Court's ruling in Parton v Milk Board,{{sfn|Caleo|1987|p=300}} subsequently endorsed unanimously in Bolton v Madsen,{{sfn|Caleo|1987|p=301}} excise duties in the Australian context are generally agreed to apply in several situations:

...the tax must be directly related to the goods and the criterion of liability must be a step in the production, manufacture, sale or distribution of the goods. There is a direct relationship between the tax and the goods if the tax is calculated by reference to the quantity or value of goods produced or dealt with in the relevant period. Conversely, it was said that to establish no more than that the imposition of the tax increased the cost of putting goods on the market by a calculable amount, e.g., because the tax was imposed in a fixed amount as the fee for a licence, falls short of establishing the requisite relationship between the tax and the goods.^[5]

In Gosford Meats Pty Ltd v New South Wales, Gibbs CJ summarised the position by stating that "an impost cannot be an excise unless it is a tax upon, or in respect of, a step in the production, manufacture, sale or distribution of goods."^[6]

While the reasoning of these cases appears straightforward, the application has not. The High Court held in a series of cases that license and franchise fees did not constitute "excise", such as:{{sfn|Halliday|1998}}{{sfn|Hanks|1986|p=366}}

However, other taxes have been held to be "excise":{{sfn|Halliday|1998}}{{sfn|Hanks|1986|p=365}}

But Ha v New South Wales has since cast doubt on State licensing schemes previously held to be valid for tobacco, alcohol and petrol, and which have accounted for a significant portion of State revenues.{{sfn|Halliday|1998}} Ha held that where such a scheme is not in reality of a regulatory nature, it is therefore invalid:

So long as a State tax, albeit calculated on the value or quantity of goods sold, was properly to be characterised as a mere licence fee this Court upheld the legislative power of the States to impose it. But once a State tax imposed on the seller of goods and calculated on the value or quantity of goods sold cannot be characterised as a mere licence fee, the application of s 90 must result in a declaration of its invalidity.^[11]

This has created significant debate as to the validity of other State taxation schemes, such as in the recent trend for States to extend stamp duty to certain dealings in goods.{{sfn|Sampathy|2002|pp=154{{endash}}155}}

Significant cases

Further reading

References

1. ^Constitution Of Australia: Chapter IV – Finance And Trade
2. ^cited by the Judicial Committee of the Privy Council in {{cite BAILII|litigants=The Brewers and Maltsters Association of Ontario v The Attorney General for Ontario|link=|court=UKPC|year=1897|num=2|format=1|parallelcite= [1897] AC 231|date=6 February 1897|courtname=PC|juris=Ontario}} and {{cite BAILII|litigants= The Bank of Toronto v Lambe|link=|court=UKPC|year=1887|num=29|format=1|parallelcite=12 AC 575|date=9 July 1887|courtname=PC|juris=Quebec}}
3. ^¹Parton, at p. 260
4. ^Parton, at p. 261, citing {{cite BAILII|litigants=Atlantic Smoke Shops Limited v James H. Conlon and others|link=|court=UKPC|year=1943|num=44|format=1|parallelcite=[1943] AC 550|date=30 July 1943|courtname=PC|juris=Canada}}
5. ^Hematite, per Mason J (as he then was) at par. 16
6. ^Gosford Meats, per Gibbs CJ at par. 8
7. ^{{cite AustLII|litigants=HC Sleigh Ltd v South Australia|link=|court=HCA|num=2|year=1977|parallelcite=(1977) 136 CLR 475|date=1 February 1977}}
8. ^{{cite AustLII|litigants=Western Australia v Hamersley Iron Pty Ltd (No 1)|link=|court=HCA|num=42|year=1969|parallelcite=(1969) 120 CLR 42|date=12 September 1969}}
9. ^{{cite AustLII|litigants=MG Kailis Pty Ltd v Western Australia|link=|court=HCA|num=10|year=1974|parallelcite=(1974) 130 CLR 245|date=1 April 1974}}
10. ^{{cite AustLII|litigants=Logan Downs Pty Ltd v Queensland|link=|court=HCA|num=3|year=1977|parallelcite=(1977) 137 CLR 59|date=1 February 1977}}
11. ^¹Ha, per Brennan CJ, McHugh, Gummow and Kirby JJ