Dickenson's Arcade Pty Ltd v Tasmania

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Dickenson's Arcade Pty Ltd v Tasmania
Coat of Arms of Australia.svg
Court High Court of Australia
Decided 1 April 1974
Citation(s) [1974] HCA 9, (1974) 130  CLR  529
Case opinions
(5:1) A licensing scheme with a backdating mechanism is not an excise (per Barwick CJ, Menzies, Gibbs, Stephen & Mason JJ; McTiernan J dissenting)
Court membership
Judge(s) sitting Barwick CJ, McTiernan, Menzies, Gibbs, Stephen and Mason JJ

Dickenson's Arcade Pty Ltd v Tasmania, also known as the Tobacco Tax case [1] is a High Court of Australia case that dealt with section 90 of the Australian Constitution.

High Court of Australia supreme court

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

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." This effectively means that States are unable to impose sales taxes.

Constitution of Australia the supreme law of Australia

The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.

In this case, the Act in question imposed licences for the sale of tobacco, and the fee was calculated as being 4.5 percent of the retail value of tobacco sold in the 12-month period ending 6 months prior to the licence period. Three judges, namely Gibbs, Menzies and Stephen JJ, applied the criterion of liability approach from Dennis Hotels Pty Ltd v Victoria [2] and held that the fee was not an excise and thus not invalid by section 90. Barwick CJ and Mason J, while disapproving of the criterion of liability approach, felt bound to follow the precedent set by Dennis Hotels, since the facts of that cases were quite similar to those in this case.

<i>Dennis Hotels Pty Ltd v Victoria</i>

Dennis Hotels Pty Ltd v Victoria, is a High Court of Australia case that deals with section 90 of the Australian Constitution, which prohibits States from levying customs or excise duties. Although some of the judges used the now-discredited criterion of liability approach, this case remains authority for cases that are factually similar to it.

The Court, with the exception of McTiernan J, excluded consumption taxes from duties of excise, although such taxes are frequently also a tax on the sale of goods.

See also

Australian constitutional law

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.

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<i>Peterswald v Bartley</i> legal case heard in the High Court of Australia in 1904

Peterswald v Bartley is an early High Court of Australia case that dealt with section 90 of the Australian Constitution, which prohibits States from levying excise.

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Parton v Milk Board (Vic), is a High Court of Australia case that dealt with the meaning of excise in relation to section 90 of the Australian Constitution.

<i>Bolton v Madsen</i>

Bolton v Madsen, is a High Court of Australia case that dealt with section 90 of the Australian Constitution, which prohibits States from levying excise duty.

<i>Andersons Pty Ltd v Victoria</i>

Anderson's Pty Ltd v Victoria, is a High Court of Australia case that dealt with Section 90 of the Constitution of Australia. In this case, following on from such cases as Dennis Hotels Pty Ltd v Victoria, Barwick CJ accepted the broad approach to the definition of an excise, but rejected the formalistic criterion of liability approach for determining if the excise falls at the relevant step. He adopted the substance over form approach, or the substantial effects doctrine, in that there are many factors to be considered, for example, the indirectness of the tax, its effect on the cost of goods and its proximity to the production or distribution of the goods.

<i>Hematite Petroleum Pty Ltd v Victoria</i>

Hematite Petroleum Pty Ltd v Victoria, is a High Court of Australia case that deals with section 90 of the Australian Constitution.

<i>Ha v New South Wales</i>

Ha v New South Wales is a High Court of Australia case that dealt with section 90 of the Australian Constitution, which prohibits States from levying excise.

<i>Roxborough v Rothmans of Pall Mall Australia Ltd</i>

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Betfair Australia is the Australian operation of the web betting exchange, Betfair. Established in 2005, Betfair Australia operates Australia’s only betting exchange under a Tasmanian Gaming Licence. Since August 2014 Betfair Australia has been fully owned by Crown Resorts.

References

  1. ↑ Dickenson's Arcade Pty Ltd v Tasmania [1974] HCA 9 , (1974) 130 CLR 177(1 April 1974), High Court.
  2. ↑ Dennis Hotels Pty Ltd v Victoria [1960] HCA 10 , (1960) 104 CLR 529(26 February 1960), High Court.

George Graham Winterton was an Australian academic specialising in Australian constitutional law. Winterton taught for 28 years at the University of New South Wales before taking up an appointment of Professor of Constitutional Law at the University of Sydney in 2004.

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