Allwrights Transport Ltd v Ashley [1962] HCA 1

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Allwrights Transport Ltd v Ashley [1962] HCA 1

ORDER Appeals dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1962, Feb. 9 Dixon C.J., McTiernan, Kitto and Windeyer JJ.

This proceeding is an appeal or appeals from convictions of the appellant upon four several complaints for offences under s. 8 (1) (e) of The Roads (Contribution to Maintenance) Acts 1957 to 1958 Q.. Somewhat irregularly a single notice of appeal was filed to cover all four convictions. The appeal was brought directly to this Court because the nature of the defence set up means that the prosecutions fell under federal jurisdiction. The defendant in fact relied upon s. 10 of the Northern Territory (Administration) Act 1910-1955 and the decision of this Court in Lamshed v. Lake [1] upholding the constitutional validity of the provision as a law of the Commonwealth operating within the States according to its tenor. Section 10 provides that trade, commerce and intercourse between the Northern Territory and the States, whether by internal carriage or ocean navigation, shall be absolutely free.

1. (1957) 99 C.L.R. 132.

Section 8 (1) (e) of The Roads (Contribution to Maintenance) Acts 1957 to 1958, under which the appellant was convicted, provides that every person who fails to pay to the Commissioner for Transport, as required by that Act, any charges payable in respect of any vehicle shall be guilty of an offence against the Act. The Act requires the owner of every commercial goods vehicle to pay to the Commissioner, towards compensation for wear and tear caused thereby to public highways in Queensland, a charge at a rate consisting of one-third of a penny per ton of the sum of—(a) the tare weight of the vehicle; and (b) forty per centum of the load capacity of the vehicle per mile of public highway along which the vehicle travels in Queensland. The defendant maintains that in the application of the provisions to traffic between the Northern Territory and the State of Queensland there is an inconsistency between these State provisions and s. 10 of the Northern Territory (Administration) Act 1910-1955 and that the State provisions are accordingly invalid to that extent under s. 109 of the Constitution. In their application to inter-State trade the same provisions have been held valid notwithstanding s. 92 of the Constitution: Boardman v. Duddington [1] . This decision applied the case of Commonwealth Freighters Pty. Ltd. v. Sneddon [2] which upheld in its application to inter-State traffic the corresponding legislation in New South Wales, viz. The Road Maintenance (Contribution) Act 1958. Some observations were made in that case [3] about the characteristics of the Act which, as against the prima facie presumption which would arise from the bare imposition of a charge in the form of a tax, raised a counter-presumption that the charge possessed a foundation bringing it within the doctrine explained in Armstrong's Case [No. 2] [4] . The observations were followed by the statement that no material before the Court weakened or overturned the counter-presumption, which should therefore be acted upon. In the present case two arguments were put forward. The first was that because of the concern, financial and otherwise, of the Commonwealth in the highway which is the subject of this case, the effect of s. 10 of the Northern Territory (Administration) Act 1910-1955 upon the State charge could not be governed by the same considerations as had been applied under s. 92 to highways in general in Queensland by the decision in Boardman v. Duddington [1] . The second was that facts were established which would make it right to treat the counter-presumption referred to in that case and in Commonwealth Freighters Pty. Ltd. v Sneddon [2] . as overturned. The possibility of sustaining this second ground has, since the argument, been negatived by the decision of the Court in Breen v. Sneddon; Martin v. Sneddon [5] . In view of that decision no more need be said as to that ground for appealing against the convictions.