High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Coastace Pty Ltd v New South Wales [1989] HCA 37 ORDER Answer the questions in the stated case as follows: 1. Whether on the facts contained in pars 2 to 7, the provisions of ss. 11(1)(c), 12(1)(a) and 28A of the Business Franchise Licences (Tobacco) Act 1975 N.S.W. are invalid as imposing a duty or duties of excise within the meaning of s. 90 of the Commonwealth Constitution in so far as they impose any such duty on the plaintiffs or either of them. Answer: No. 2. Whether on the facts contained in pars 2 and 9 to 13, the provisions of ss. 36(1), 41(1), 43 and 47(1) of the Business Franchise Licences (Tobacco) Act 1987 N.S.W. are invalid as imposing a duty or duties of excise within the meaning of s. 90 of the Commonwealth Constitution in so far as they impose any such duty on the plaintiffs or either of them. Answer: No. 3. By whom should the costs of this reference be paid. Answer: The plaintiffs to pay the defendants' costs of the reference. Cur. adv. vult. The following written judgments were delivered:— Aug. 24 Mason C.J. and Deane J. This case stated pursuant to s. 18 of the Judiciary Act 1903 Cth raises questions similar to those raised by Philip Morris Ltd. v. Commissioner of Business Franchises [1] which was heard at the same time. 1. Ante, p. 399. The facts may be briefly stated. The first plaintiff is a company incorporated in Queensland, of which the second plaintiff is a director. During the period from 28 January 1987 to 26 June 1987 one or other of the plaintiffs carried on in New South Wales the business of "tobacco wholesaling" within the meaning of that term in s. 3(1) of the Business Franchise Licences (Tobacco) Act 1975 N.S.W. ("the 1975 Act"). Section 10(1) of the 1975 Act stated as follows: On or after 28th November, 1975, a person shall not carry on tobacco wholesaling unless he is the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence. Neither plaintiff was during that period the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence under the 1975 Act. The second defendant was at all material times the Chief Commissioner for Business Franchise Licences (Tobacco) for the purposes of the 1975 Act. On 21 July 1987 the fourth defendant, as the delegate of the second defendant, caused to be served on the second plaintiff notices of assessment of licence fees payable by him and made pursuant to s. 28A of the 1975 Act in respect of the period referred to above and totalling $1,256,864.10. Two-thirds of this sum consisted of penalties for failure to pay the relevant fees. Section 28A made provision for the recovery of unpaid fees and penalties. Section 11(1)(c) of the 1975 Act required the Chief Commissioner upon payment of the fee assessed by him in accordance with s. 12 either to grant to the applicant the appropriate licence or to refuse to do so. Section 12 stated, so far as is relevant: (1) The fees to be paid for licences shall be as follows:— (a) for a wholesale tobacco merchant's licence — a fee of $10 together with an amount of 30 per cent of the value of tobacco sold by the applicant in the course of tobacco wholesaling during the relevant period, other than tobacco purchased on or after 1 January 1987 — (i) from the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence; or Section 12(1)(a1) provided in similar terms for the calculation of the fee payable for a group wholesale tobacco merchant's licence. The phrase "relevant period" was defined in s. 3(1) to mean, in broad terms, in relation to a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence, the last month but one before the month for which the licence was sought. The plaintiffs contend that ss. 11(1)(c), 12(1)(a) and 28A of the 1975 Act were outside the legislative power of the State of New South Wales because they imposed a duty of excise within the meaning of s. 90 of the Constitution. The plaintiffs contend further that provisions of the Business Franchise Licences (Tobacco) Act 1987 N.S.W. ("the 1987 Act") corresponding to the impugned provisions of the 1975 Act which the 1987 Act repealed are likewise invalid. There is no relevant difference between the two sets of legislative provisions. The facts of this case are on all fours with the material facts in Philip Morris and, in the light of our reasons for judgment in that case, there is no relevant ground of distinction available to the plaintiffs. The questions in the stated case should therefore be answered as follows: 1. No. 2. No. 3. The plaintiffs to pay the defendants' costs of the reference. Brennan J. During the period 28 January 1987 to 26 June 1987 one or other of the plaintiffs carried on in New South Wales the business of "tobacco wholesaling" within the meaning of that term in s. 3(1) of the Business Franchise Licences (Tobacco) Act 1975 N.S.W. ("the repealed Act"). During the period from 28 June 1987 until 27 July 1987 one or other of the plaintiffs carried on in New South Wales the business of "tobacco wholesaling" within the meaning of that term in s. 3(1) of the Business Franchise Licences (Tobacco) Act 1987 N.S.W. ("the 1987 Act"). The 1987 Act, which repealed the repealed Act, came into force on 26 June 1987. During neither of these periods was either plaintiff the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence under the Act then in force. The repealed Act and the 1987 Act each created a scheme for the licensing of persons to carry on tobacco wholesaling at premises to be specified in the licence. The essential features of the licensing schemes thus created were the same as the essential features of the licensing scheme created by the Business Franchise (Tobacco) Act 1974 Vict. which is considered in the judgments just published in Philip Morris Ltd. v. Commissioner of Business Franchises [2] . 1. Ante, p. 399. The repealed Act and the 1987 Act each contains a provision (s. 28A and s. 47 respectively) which creates a liability in a person who was required to hold a licence but did not do so to pay an amount equal to the licence fee together with a penalty for twice that amount. The plaintiffs challenge the validity of the provisions of the respective Acts which provide for the calculation of the licence fee and which prescribe the value of the tobacco to be used to calculate the variable component of the fee (ss. 11(1)(c) and 12(1)(a) of the repealed Act; ss. 36(1), 41(1) and 43 of the 1987 Act) as well as the validity of s. 28A of the repealed Act and s. 47 of the 1987 Act. There being no material difference between the wholesale licence fees imposed by these Acts and the wholesale licence fee imposed by the Victorian Act, I would hold the variable component of the licence fees imposed by the New South Wales Acts to be a duty of excise. I have stated my reasons in Philip Morris. I see no reason to hold invalid those provisions which relate to the enforcement of the liability to pay the fixed component of the licence fee. I would therefore answer the questions in the case stated as follows: 1. Those parts of the several paragraphs of s. 12(1) of the Business Franchise Licences (Tobacco) Act 1975 N.S.W. which commence with the words "together with" are invalid as imposing a duty of excise within the meaning of s. 90 of the Constitution. 2. Those parts of the several paragraphs of s. 41(1) of the Business Franchise Licences (Tobacco) Act 1987 N.S.W. which commence with the word "together with" and s. 43 of that Act are invalid as imposing a duty or duties of excise within the meaning of s. 90 of the Constitution. 3. The costs should be paid by the defendants. Dawson J. For the reasons I gave in Philip Morris Ltd. v. Commissioner of Business Franchises [3] ss. 11(1)(c), 12(1)(a) and 28A of the Business Franchise Licences (Tobacco) Act 1975 N.S.W. and ss. 36(1), 41(1), 43 and 47(1) of the Business Franchise Licences (Tobacco) Act 1987 N.S.W. do not impose duties of excise within the meaning of s. 90 of the Commonwealth Constitution. I therefore agree with the answers to the case stated proposed by Mason C.J. and Deane J. 1. Ante, p. 399. Toohey and Gaudron JJ. The facts and relevant legislative provisions are set out in the joint judgment of Mason C.J. and Deane J. As their Honours point out, the facts and the legislative provisions are not relevantly distinguishable from those considered in Philip Morris Ltd. v. Commissioner of Business Franchises [3] . For the reasons that we have given in Philip Morris, the questions in the stated case should be answered in the manner proposed in the joint judgment of Mason C.J. and Deane J. 1. Ante, p. 399. McHugh J. The material facts and the legislation in question in this case are so comparable with those considered inPhilip Morris Ltd. v. Commissioner of Business Franchises [4] that, for the reasons I gave in that case, the license fees, other than the fixed fees, imposed by the Business Franchise Licences (Tobacco) Act 1975 N.S.W. and the Business Franchise Licences (Tobacco) Act 1987 N.S.W. are duties of excise. 1. Ante, p. 399. I would answer the questions in the case stated: 1. Yes, as to those parts of the several paragraphs of s. 12(1) of the Business Franchise Licences (Tobacco) Act 1975 N.S.W. which commence with the words "together with". 2. Yes, as to those parts of the several paragraphs of s. 41(1) of the Business Franchise Licences (Tobacco) Act 1987 N.S.W. which commence with the words "together with" and as to s. 43 of that Act. 3. The defendants.