Capital Duplicators Pty Ltd v Australian Capital Territory [No 2] [1993] HCA 67

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Capital Duplicators Pty Ltd v Australian Capital Territory [No 2] [1993] HCA 67

ORDER Answer the questions reserved for the consideration of the Court as follows: (1) Are any, and if so which, of the provisions of the Business Franchise (X Videos) Act 1990 ACT invalid as imposing, in any respect, either a duty of excise or a duty of customs or both within the meaning of s. 90 of the Commonwealth Constitution? Answer: Sections 5(1)(b), 9(2)(c), 19 and 20 of the Business Franchise (X Videos) Act 1990 ACT are invalid as imposing duties of excise. (2) Are any, and if so which, of the provisions of that Act invalid under the Australian Capital Territory (Self-Government) Act 1988 Cth as being a law with respect to a classification of materials for the purposes of censorship? Answer: Does not arise. (3) If the answer to any part of questions (1) or (2) is yes, are any, and if so which, further provisions of that Act incapable of being severed from those provisions and therefore invalid? Answer: No answer to question (3). The parties be at liberty to address argument on question (3). The defendants to pay the plaintiffs' costs of the questions reserved.

Cur. adv vult.

The following written judgments were delivered:—

Dec. 7 Mason C.J., Brennan, Deane and McHugh JJ.

In its earlier decision [1] in these proceedings, the Court held that Ch. IV of the Constitution precluded the Legislative Assembly of the Australian Capital Territory from imposing duties of excise within the meaning of s. 90 of the Constitution. Following that decision, the Chief Justice reserved for the consideration of the Full Court pursuant to s. 18 of the Judiciary Act 1903 Cth the following questions:

(1) Are any, and if so which, of the provisions of the Business Franchise (X Videos) Act 1990 ACT invalid as imposing, in any respect, either a duty of excise or a duty of customs or both within the meaning of s. 90 of the Commonwealth Constitution?