Parton v Milk Board (Vic) [1949] HCA 67

High Court of Australia Latham C.J. Rich, Dixon, McTiernan and Williams JJ. Parton v Milk Board (Vic) [1949] HCA 67

ORDER Demurrer overruled.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 Latham C.J.

This is a demurrer to a statement of claim in an action in which the plaintiffs Eric Moss Parton and Margaret Parton seek a declaration that s. 30 of the Milk Board Acts of Victoria and certain regulations and determinations thereunder with respect to contributions are invalid, a declaration that, even if the Acts are valid, the regulations are invalid, and appropriate injunctions. The principal question which arises is whether the Acts or the regulations impose a duty of excise. The Commonwealth Constitution, s. 90, provides that the power of the Parliament to impose duties of customs and excise is exclusive. Accordingly a State Parliament cannot validly impose an excise duty. If s. 30 of these Victorian Acts is invalid, the provisions of the Acts with respect to the collection of money to meet the expenditure of the Milk Board constituted under the Acts will not operate. The actual contributions are fixed by regulations made under the statutes. Even if the Acts are valid, it may still be the case that the regulations are invalid as themselves imposing an excise duty. A further argument submitted for the plaintiffs is that the regulations fixing the amount of the contributions are (independently of all constitutional considerations) ultra vires the Acts.

The Milk Board Act 1933, No. 4183, has been amended in many of its sections by subsequent Milk Board Acts passed in 1934 (No. 4276), 1936 (No. 4463) and 1939 (No. 4676). Some of the provisions of the Act can be interpreted and applied only by reference to the Milk and Dairy Supervision Act 1928. These Acts embody a detailed scheme with respect to the production, distribution and sale of milk, wholesale and retail. The Milk Board Acts consist principally of special provisions relating to the metropolis, which is defined in s. 4 of Act No. 4183 as meaning certain municipal districts specified in the Second Schedule to the Milk and Dairy Supervision Act 1928, and other proclaimed municipal districts. The municipal districts mentioned in the Second Schedule are the City of Melbourne and twenty-six neighbouring suburbs.