Peterswald v Bartley

Last updated
Peterswald v Bartley
Coat of Arms of Australia.svg
Court High Court of Australia
Decided 31 August 1904
Citation(s) [1904] HCA 21, (1904) 1 CLR 497.
Case history
Prior action(s)Peterswald v Bartley [1904] NSWStRp 28, (1904) 4 SR (NSW) 290
Appealed from Supreme Court (Full Court) (NSW)
Case opinions
(3:0) The Court took a narrow approach to the meaning of excise in relation to section 90, holding that a licence fee that did not depend on the brewer's output was not an excise.
Court membership
Judge(s) sitting Griffith CJ, Barton and O'Connor JJ
Overruled by
Ha v New South Wales [1997] HCA 34, (1997) 189 CLR 465

Peterswald v Bartley [1] is an early High Court of Australia case that dealt with section 90 of the Australian Constitution, which prohibits States from levying excise.

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.

Contents

Background

Bartley was a brewer of beer at Cootamundra in the state of New South Wales. He had a licence under the Commonwealth Beer Excise Act 1901 [2] however he didn't have a licence under the NSW Liquor Act 1898. [3] Sergeant Peterswald was a police officer and District Licensing Inspector and he charged Bartley with carrying on the trade or business of a brewer without holding a licence under the NSW Act and the issue concerned the payment of a licence fee. The Police Magistrate upheld Bartley's contention that the licence fee was an excise duty and that the effect of section 90 of the Australian Constitution was that the state Act ceased to have effect once the Commonwealth imposed uniform customs duties. Peterswald appealed to the Supreme Court of NSW, where the Sergeant was represented by the then Attorney-General of NSW, Bernhard Wise KC . The Supreme Court, by a majority, Darley CJ and Owen J, dismissed the appeal. Pring J dissented. [4]

Brewing production of beer

Brewing is the production of beer by steeping a starch source in water and fermenting the resulting sweet liquid with yeast. It may be done in a brewery by a commercial brewer, at home by a homebrewer, or by a variety of traditional methods such as communally by the indigenous peoples in Brazil when making cauim. Brewing has taken place since around the 6th millennium BC, and archaeological evidence suggests that emerging civilizations including ancient Egypt and Mesopotamia brewed beer. Since the nineteenth century the brewing industry has been part of most western economies.

Beer alcoholic drink

Beer is one of the oldest and most widely consumed alcoholic drinks in the world, and the third most popular drink overall after water and tea. Beer is brewed from cereal grains—most commonly from malted barley, though wheat, maize (corn), and rice are also used. During the brewing process, fermentation of the starch sugars in the wort produces ethanol and carbonation in the resulting beer. Most modern beer is brewed with hops, which add bitterness and other flavours and act as a natural preservative and stabilizing agent. Other flavouring agents such as gruit, herbs, or fruits may be included or used instead of hops. In commercial brewing, the natural carbonation effect is often removed during processing and replaced with forced carbonation.

Cootamundra Town in New South Wales, Australia

Cootamundra is a town in the South West Slopes region of New South Wales, Australia and within the Riverina. It is within the Cootamundra-Gundagai Regional Council. At the 2016 Census, Cootamundra had a population of 6,782. It is located on the Olympic Highway at the point where it crosses the Muttama Creek, between Junee and Cowra. Cootamundra is not on the Hume Highway, but its railway station is on the Main Southern line, part of the Melbourne-to-Sydney line. Abb McAlister is mayor of the Cootamundra-Gundagai Regional Council.

Decision

Griffith CJ delivered the judgement of the court, noting that "the Constitution was framed in Australia by Australians, and for the use of the Australian people", [1] :509 and holding that an excise is a customs duty imposed on goods either in relation to quantity or value when produced or manufactured and not in the sense of a direct or personal tax. His Honour outlined four elements of an excise:

Samuel Griffith Australian politician

Sir Samuel Walker Griffith, was an Australian judge and politician who served as the inaugural Chief Justice of Australia, in office from 1903 to 1919. He also served a term as Chief Justice of Queensland and two terms as Premier of Queensland, and played a key role in the drafting of the Australian constitution.

Chief Justice of Australia presiding justice of the High Court of Australia

The Chief Justice of Australia is the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia. The incumbent is Susan Kiefel, who is the first woman to hold the position.

The Court held that the amount of the NSW licence fee did not depend on the quantity of beer manufactured and was a direct tax on manufacture. The licence fee was therefore not an excise and the brewer was required to hold a licence under the NSW Act as well as the Commonwealth Act. [1] :511-2

His Honour's requirement that the tax be imposed at the point of production or manufacture forms what is known as the narrow approach to section 90. The narrow approach was rejected by the High Court in Ha v New South Wales . [5]

<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.

See also

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References

  1. 1 2 3 4 Peterswald v Bartley [1904] HCA 21 , (1904) 1 CLR 497 , High Court.
  2. ↑ "Beer Excise Act 1901". Commonwealth of Australia. 5 October 1901.
  3. ↑ "Liquor Act 1898" (PDF). NSW Parliamentary Counsel's Office. 27 July 1898.
  4. ↑ Peterswald v Bartley [1904] NSWStRp 28 , (1904) 4 SR (NSW) 290, Supreme Court (Full Court) (NSW).
  5. ↑ Ha v New South Wales [1997] HCA 34 , (1997) 189 CLR 465, High Court.

Further reading

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