Mutual Pools & Staff Pty Ltd v Commissioner of Taxation (Cth) [1992] HCA 4

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Mutual Pools & Staff Pty Ltd v Commissioner of Taxation (Cth) [1992] HCA 4

ORDER Demurrer overruled. Declare that the provisions of the Sales Tax Assessment Act (No. 1) 1930 Cth which, when incorporated and read as one with the Sales Tax Act (No. 1) 1930 Cth, would have the effect of imposing a tax upon a sale value of so much of a swimming pool as is constructed in situ are of no effect. Order that the defendant pay the costs of the first plaintiff.

Cur. adv. vult.

The following written judgments were delivered:—

1992, Feb. 12 Mason C.J., Brennan and McHugh JJ.

We agree that the demurrer should be overruled for the reasons given by Dawson, Toohey and Gaudron JJ. We add the following comments.

The relevant injunction in s. 55 of the Constitution is that laws imposing duties of excise shall deal with duties of excise only. Since Parton v. Milk Board (Vict.) [1] , it has been accepted that a duty of excise is a tax directly related to goods, imposed on some step in their production or distribution before they reach the consumer [2] . A tax on the sale of goods is, accordingly, a duty of excise. It follows that the sales tax imposed by s. 3 of the Sales Tax Act (No. 1) 1930 Cth and levied, on the sale value of goods manufactured in Australia, by s. 17(1) of the Sales Tax Assessment Act (No. 1) 1930 Cth is a duty of excise, at least to the extent that it levies a tax on the sale value of what are truly goods. Whether a tax imposed in relation to something other than goods can ever constitute a duty of excise is a question that has not arisen for decision in this Court.

1. (1949) 80 C.L.R. 229. 2. Hematite Petroleum Pty. Ltd. v. Victoria (1983), 151 C.L.R. 599, at pp. 615, 619, 634, 657-658, 665; and see Philip Morris Ltd. v. Commissioner of Business Franchises (Vict.) (1989), 167 C.L.R. 399, at pp. 430-431, 433-436, 443-446, 467-468, 473, 483-484 and esp. pp. 488-489, per McHugh J.