MG Kailis (1962) Pty Ltd v Western Australia [1974] HCA 10

High Court of Australia McTiernan, Menzies, Gibbs, Stephen and Mason JJ. MG Kailis (1962) Pty Ltd v Western Australia [1974] HCA 10

ORDER Demurrer overruled with costs, not including the costs of the intervener.

Cur. adv. vult.

The following written judgments were delivered:—

1974, April 1 McTiernan J.

This matter comes before the Full Court on a demurrer involving the determination of the constitutional validity of s. 35G of the Fisheries Act, 1905-1971 W.A.. The plaintiff seeks in the action a declaration that this section is ultra vires the legislature of the State because it is in conflict with s. 90 of the Constitution of the Commonwealth of Australia so far as that section relates to duties of excise.

Section 35G is in Pt IIIB of the Act, the heading of which Part is "Processing Establishments". Section 35G is as follows:

(1) The fees payable in respect of processor's licenses granted or renewed under this Part shall be assessed at a percentage of—

(a) the value of fish caught; and

(b) the moneys paid or payable for fish purchased,

by or for the person operating, or causing or permitting to be operated on his behalf, a processing establishment, for processing on or in that establishment for purposes of sale.

(2) Every person to whom a processor's license is granted, and every licensee of a processor's license that is renewed, shall pay to the Director as an annual fee for that license in respect of each year commencing on the first day of January a sum calculated on the gross amount of the value of fish caught, and the moneys paid or payable for fish purchased, for processing in the processing establishment during the period ending the thirtieth day of June next preceding the commencement of that year equal to such percentage, not exceeding one per centum, of that gross amount as the Governor by Order in Council determines and is authorised so to determine from time to time, and that person or licensee shall pay that sum in two moieties, the first of which shall be paid within thirty days after the license is granted, or as the case may be, renewed and the other within a period of six months thereafter.