Parton v Milk Board (Vic)

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Parton v Milk Board (Vic)
Coat of Arms of Australia.svg
Court High Court of Australia
Decided 21 December 1949
Citation(s) [1949] HCA 67, (1949) 80 CLR 229
Case opinions
(3:2) The broad approach to excise in section 90 is to be taken (per Rich, Dixon & Williams JJ; Latham CJ & McTiernan J dissenting)
Court membership
Judge(s) sitting Latham CJ, Rich, Dixon, McTiernan and Williams JJ

Parton v Milk Board (Vic), [1] is a High Court of Australia case that dealt with the meaning of excise in relation to 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 tax was calculated as a fixed amount per gallon of milk, and imposed on retailers, instead of at the production phase; this was held to be invalid as imposing a duty of excise. This heralded in the broad approach to section 92 - where a "tax upon a commodity at any point in the course of distribution before it reaches the consumer produces the same effect as a tax upon its manufacture or production" (per Dixon J). Rich and Williams JJ agreed with Dixon J, stating that a tax at a later stage in the handling of a good is in effect a tax on the production or manufacture of the good.

Section 92 of the Constitution of Australia, as far as is still relevant today is:

Latham CJ dissented, using Peterswald v Bartley , [2] and McTiernan J felt that it should be employed in a narrower sense, to make it fit within what he perceived to be the object of the section, which was to promote a "uniform fiscal policy for the Commonwealth".

<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.

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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References

  1. ↑ Parton v Milk Board (Vic) [1949] HCA 67 , (1949) 80 CLR 229 (21 December 1949), High Court.
  2. ↑ Peterswald v Bartley [1904] HCA 21 , (1904) 1 CLR 497 (31 August 1904), 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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