Armstrong v Victoria

Armstrong v Victoria - [1957] HCA 55 - HCA 1957 case summary — Zoe

[8]

The provisions of Pt. II of the Commercial Goods Vehicles Act were treated as an attempt by the Victorian legislature to take advantage of the view expressed in the joint judgment of McTiernan and Webb JJ. and myself [1] and in the respective judgments of Williams J. [2] and Fullagar J. [3] in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [4] that the freedom of trade commerce and intercourse among the States which s. 92 assures is not necessarily incompatible with the States obtaining from inter-State carriers by road some contribution towards the upkeep of the highways they use. In each of the three judgments mentioned there is a discussion of the reasons why without impairing the freedom of inter-State trade commerce and intercourse a State may require inter-State carriers to pay some contribution to the maintenance of the roads used, and there is a consideration of the nature of, and the limits upon, the charge that might be made. Kitto J. and Taylor J. adopted the contrary view. Kitto J. expressed his conclusion thus - "Neither in reason nor upon authority have I found it possible to reconcile the freedom which s. 92 decrees for trade, commerce, and intercourse among the States with the existence in a State legislature of a power to make a compulsory levy upon an individual as a condition, or by reason, of his traversing the roads of the State in the course of an inter-State journey" [1] . His Honour proceeded to give reasons for this conclusion, reasons it must at once be admitted which must strike the mind as possessing prima facie great logical force, deriving as they do from a simple position. It is the position that whatever restrictions, consistently with s. 92, you may "apply to some individuals for the sake of others so that their possibly conflicting interests may be mutually adjusted" [2] , you cannot say that if a trader engages in an inter-State activity he must make a payment of money without moving into a different field; you must deny that he may enter as of right and make a law having a direct adverse operation upon the activity, in short burden it with tax.

[24]

No one can be more alive than I am to the difficulties of the first of these questions but the full re-examination which the subject has received in the present case has not led me to repent of the views expressed upon it in the reasons of McTiernan J., Webb J. and myself in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [1] . Accordingly I wish to begin by incorporating those pages in this judgment by reference. In what follows I shall endeavour to avoid repeating what they contain. The reasoning there appearing does not however go back to the more abstract propositions from which Kitto J. begins in stating the grounds of his opinion on this question in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [2] . As will be seen from the citations which his Honour gives, I have long understood the words of s. 92 in the sense which Kitto J. describes. Any abstract restatement of the meaning of the law is however exposed to misconstruction and moreover time must disclose that this or that aspect deserves greater emphasis than was foreseen. In McCarter v. Brodie [3] I spoke of what I had written in the case of O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.) [4] and to that I wish only to add that, if that dissenting judgment and the dissenting judgment in Willard v. Rawson [5] have now acquired any authority, what is important for present purposes to notice is the statement in the latter judgment [6] of the doctrine prevailing in the United States with reference to motor transport between States and the terms in which it is rejected as inapplicable to s. 92. There occurs in the citation the following passage - "If a statute fixes a charge for a convenience or service provided by the State or an agency of the State, and imposes it upon those who choose to avail themselves of the service or convenience, the freedom of commerce may well be considered unimpaired, although liability to the charge is incurred in inter-State as well as intra-State transactions. But in such a case, the imposition assumes the character of remuneration or consideration charged in respect of an advantage sought and received" [7] . In the judgment in O. Gilpin's Case [4] the fact that the interference must amount to a restriction or burden is made the first consideration [8] and by way of example of what is not a burden the illustration is given of tolls on a bridge [9] .

[38]

But it is evident that such a charge must not go outside or beyond the limitations which are necessarily implied in that conception of its nature which forms its justification. That conception is that if the charge is no more than a fair recompense for the actual use made of the highway having regard, not only to the wear and tear to which every use of it contributes, but to the costs of maintenance and upkeep, its imposition may not be incompatible with the freedom guaranteed by s. 92. As the cases in the United States suggest, it is not possible consistently with s. 92 to impose a tax on a man in respect of his right to engage in the inter-State carriage of goods or people. It is another thing, however, to require him to pay for the actual use he makes of the road. Again, to impose the capital costs of road construction upon the traffic would not seem consistent with s. 92. Traffic is a constant flow and the regularly recurring charges of maintaining a surface for it to run upon may be recoverable from the flowing traffic without any derogation of the freedom of movement; but any contribution to capital expenditure goes altogether outside such a principle. The charge moreover must be a genuine attempt to cover or recover the costs of upkeep. It may of course be arrived at by a pre-estimate; and an ex post facto discovery of error in the pre-estimate will not necessarily mean that the pre-estimate was not genuine. When in respect of the amount of the charge it is said that it must be reasonable that means reasonable in relation to its nature and purpose. If a ton mileage rate is in question it must be reasonable as a proportionate contribution made by the description of vehicle by reference to which the contribution is fixed, that is to say a proportionate contribution to the recovery of those costs of upkeep the bearing of which by the traffic cannot be said to impair the freedom of inter-State transport. Obviously a State cannot single out inter-State transport from transport generally for a particular charge. The places where a journey begins or ends have no bearing on the justness of a compensatory charge made for using the road.

[41]

It will have been observed that the tonnage rate of one-third of a penny a mile is charged upon the whole journey by s. 26 and the fourth schedule of the Commercial Goods Vehicles Act. In the case of an inter-State journey it may well begin at the warehouse door of the suburb of a capital city and end in a country town of a neighbouring State. The beginning and the end of the journey may involve ill-made and insufficient streets and the middle of the journey a main road or State highway. Is a flat rate charge "justifiable" for the whole journey? At each end the State may have provided bad roads and, owing to their insufficiency, the axle weight of the vehicle may have done them great injury. The middle of the journey may have been over an expensive but satisfactory road and the wear and tear slight. Infinite variations of the theme are possible but this illustration is enough to make it clear. Is it consistent with the theory that a proper charge by way of compensation for using the roads is not incompatible with freedom of transit to impose a flat tonnage rate per mile in disregard of all the varying roads and circumstances? It is easy, in answer to the question, to say that the exigencies of a busy and practical world do not admit of any nicer treatment of individual cases. But such an answer may draw the retort that it only shows how impossible the distinction is. The point however is met by other considerations. There is only one charge it is true, a third of a penny a ton per mile. But it is not a flat rate per vehicle. The load capacity of the vehicle must, to begin with, be at least four tons. That implies a vehicle that is not light. As the load capacity goes up, the weight of the vehicle increases and so does the amount payable. The limit of loaded weight in Victoria is an axle weight of 17,000 lbs. and for particular roads this may be reduced by proclamation; (see s. 32 (1) (g), (3) and (4) of the Motor Car Act 1951 (No. 5616)). If you add to this the general probabilities to which conditions in Victoria give rise, it is a reasonable conclusion that, unless in relation to the more frequented inter-State routes the rate is excessive, then the complaint ought not to be made that it is excessive in relation to other highways.

[55]

It will be seen from the foregoing that the registration fee is, (i) payable on registration, (ii) quantified by reference to (a) the power and weight of the vehicle, (b) its commercial use and (c) the possession of tires likely to be more harmful to roads than pneumatic tires, (iii) enforced by penalising the use on the highway of an unregistered motor vehicle and (iv) sufficient in amount to constitute a significant burden. Before the Full Court counsel devoted little argument to the question whether the fees can be imposed on vehicles exclusively employed in carrying goods in inter-State trade. But to me it seems to be by no means free of difficulty. For the defendants it was simply said that the question was governed by Willard v. Rawson [1] , the authority of which still stood. The grounds upon which the decision in that case proceeded would no doubt apply to the present case; indeed I think that if now accepted they would apply with greater logical force than they did to the legal and factual situation in Willard v. Rawson [1] . But I cannot agree that it is the same legislation or the same case. The question in Willard v. Rawson [1] concerned an inward journey into Victoria by a truck registered in New South Wales carrying nothing but goods from New South Wales. Until about eighteen months before that time the relevant Victorian law had been in much the same condition as it is now. Section 4 (1) of the Motor Car Act 1928 required registration in the same way as s. 6 (1) of the Motor Car Act 1951 now does. Sub-section (3) of s. 4 of the former Act corresponded with sub-s. (4) of s. 6 of the latter and required payment on registration of the fees provided for in a second schedule which was indistinguishable from that of the present Act, that is before the rates were raised by fifty per cent. Sub-section (4) of s. 4 of the Act of 1928 contained the provisions which in substance are now to be found in s. 17 of the Act of 1951 and included the prohibition of driving an unregistered motor car upon a highway. Sub-section (7) of s. 4 of the Act of 1928 contained in effect the provision which now stands as reg. 59 exempting visiting cars from registration and consequently from the payment of the fees. It differed in confining the exemption to cars owned by residents of another State. But Willard owned the car he drove and he resided in New South Wales; so the difference may be ignored. What caused the difficulty was the introduction into the law of Victoria of a limitation upon the exemption of visiting motor cars. By the Motor Car Act 1930 (No. 3901) s. 5 (e) the exemption contained in sub-s. (7) of s. 4 of the Act of 1928 was replaced by a new exemption which, although otherwise of the same general effect, expressly excluded from its benefit "a motor car which is used in Victoria for carrying passengers for hire or goods for hire or in the course of trade". This form of exclusion of the commercial use of vehicles from the exemption remained in force but a short time. Indeed before Willard's Case [1] reached this Court the Motor Car Act 1932 (No. 4045) s. 2 (1) had substituted a proviso to the exemption requiring motor cars carrying passengers or goods from another State to obtain a permit for a short incursion into the State and special permits for longer journeys. The proviso would not now be regarded as valid. It was removed in 1939 by s. 42 of Act No. 4688 in favour of a regulation-making power covering the subject. My dissent from the decision of the Court upholding Willard's conviction for driving his car, although carrying goods and so excluded from the exemption, was not based on narrow grounds. But in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [2] I stated the position I was prepared to adopt as to Willard's Case [1] . I did so in the course of an attempt to make it clear that there is nothing necessarily inconsistent with s. 92 in making uniform laws covering the organisation and conduct of motor traffic and transportation. I shall repeat the passage. "For myself I do not know why a uniform law for the organisation and the regular conduct of motor traffic or a uniform law prescribing conditions for the business of carrying by road should be regarded as necessarily impairing the freedom of inter-State trade commerce and intercourse. The provision which in Willard v. Rawson [1] , all the judges but myself upheld as valid did not appear to me to be of this character. It was a special provision affecting only motor cars registered in other States if used in Victoria for the carriage of goods. Motor cars if registered in another State were exempt from registration in Victoria and from the payment of the registration fee annually payable in that State. But the provision impugned specially withdrew this exemption if the vehicle was used to carry goods. Thus entry into Victoria of a New South Wales lorry carrying goods at once exposed it to the levy of what to a Victorian car would be an annual fee. This appeared to me to be a direct burden upon inter-State trade. I am quite prepared to accept the view that my conclusion as to the character or characterisation of the provision was erroneous, but it has nothing to do either with the present case on the one hand or with a general regulation of transport on the other hand" [2] . In R. v. Vizzard; Ex Parte Hill [3] I had distinguished Willard's Case [1] by reference to the grounds on which it was decided and I quoted passages from the reasons of Rich J., of Starke J., of McTiernan J. and of Evatt J. I do not think I did more than show by quotation the view which each of their Honours took but Fullagar J. in McCarter v. Brodie [4] regarded the passage as a correct statement by me of the reasons underlying the decision in Willard v. Rawson [1] and summarised them thus - "To put it very shortly, the fee was not a tax but rather in the nature of a reasonable charge for facilities provided by the State and used by persons who drove motor cars in Victoria, it did not deal with trade and commerce as such, and, if it could be said to have any burdensome effect on inter-State trade and commerce, that effect was merely indirect and consequential. So understood, I think that there is no great difficulty in regarding Willard v. Rawson [1] as an example of "regulatory" legislation. It would not, of course, affect my opinion in the present case if I thought otherwise of Willard v. Rawson [1] , but I have thought it proper to express my view of that case" [1] . In Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [2] Kitto J. expressed parenthetically his agreement with this statement of Fullagar J. In the judgment of McTiernan and Webb JJ. and myself in Nilson v. State of South Australia [3] , Willard's Case [4] was again referred to and I stated for myself that all I found it necessary to say about the case was that the decision of the majority of the Court, in so far as it is not to be accounted for by an adherence to a conception of the operation of s. 92 which is no longer open, appears to depend simply upon a characterisation in which I found myself at the time unable to agree.

[57]

In his reasons in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [5] Kitto J. expressed fully his views upon Willard v. Rawson [4] and I shall set out what his Honour said. It is as follows - "I should add a word as to the view to which I have come in regard to the much debated case of Willard v. Rawson [4] . The judgments of Evatt and McTiernan JJ. must, I think, be put on one side as having proceeded upon a view of s. 92 which the more recent decisions of the Privy Council have made untenable. Rich J. directed his attention to the question whether the tax there in question (which he described as a fee upon registration) was a direct, immediate or intended burden upon inter-State trade, commerce, and intercourse as distinguished from one which was consequential, mediate or remote; and his answer that the burden was merely consequential was based upon the view that the tax was imposed, not upon trade, commerce, or intercourse as such, but upon motor vehicles. If his Honour had been willing to concede that, being a tax upon the use of motor vehicles on public streets, it was a burden imposed in reference to one of the essential characteristics of a form of inter-State intercourse, he must necessarily have given the opposite answer to the question. Starke J., after adverting to some considerations which he apparently regarded as tending in favour of the validity of the tax, adopted as "the real answer" the view that the requirement that fees be paid was attached as a reasonable adjunct to the main provisions of the Act, just as were (in his Honour's opinion) the registration and licensing requirements, the main provisions being considered as directed to the protection of the State highways and those who used them. The licensing provisions have since been shown not to be of this character. The registration provisions are no doubt (in the main at least) consistent with s. 92 as being in aid of the regulation of the traffic, even in the narrowest sense of regulation. If the tax in question had been really a registration fee, in the sense of a payment for the work of officers of the State in putting the registration through, perhaps it would have been valid. But in fact it was of a totally different character; it was simply a tax upon a form of travel, the payment of it being made a condition precedent to the right to use the public streets" [1] . In the same case Taylor J. referred to Willard v. Rawson [2] . His Honour expressed the opinion that the reasons of the majority are now at least of doubtful validity. His Honour said that in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [3] the Judicial Committee were not invited to review the case [4] . Taylor J. then pointed out the difficulties now of supporting the several grounds upon which the respective judgments of the members of the majority of the Court proceeded. Finally his Honour said this - "I do not understand the observations of Fullagar J. in McCarter v. Brodie [5] as giving approval, as was suggested in argument, to the reasoning in Willard v. Rawson [2] . Rather they indicate that, upon the views taken in that case of the character and effect of the Act in question, the decision was by no means an obstacle to the opinions formed and expressed by him concerning the Victorian Transport Regulation Act " [6] .

[65]

Williams J. stated thus the essential ground for holding the tax incapable of applying to vehicles exclusively engaged in inter-State trade: - "The amount of the tax is not calculated upon the distance the vehicle is driven along the roads. It is imposed so that the vehicle may be lawfully used or driven on the public streets for a certain period. It is therefore necessary for any motor vehicle moving along a public street in New South Wales in order to cross the border in or out of New South Wales to be registered and pay the tax. Otherwise it is liable to be seized and forfeited (Management Act, s. 6). The tax is imposed directly upon the movement of vehicles and therefore upon the movement of vehicles in inter-State trade commerce or intercourse" [1] . Fullagar J. said: - " the exaction of a fee as a mere incident of registration may be said not to offend against s. 92: cf. Willard v. Rawson [2] . But the exaction imposed by the Management Act and the Taxation Act cannot be regarded as a mere incident of registration regarded as an object in itself. What is imposed by those Acts is a real and very substantial tax on motor vehicles" [3] . In the concluding part of his reasons his Honour says - "It is true that the tax in question is not imposed on or in respect of any activity which possessed the characteristics of trade, commerce or intercourse. Generally speaking, it will fall on the owner of a chattel, and it may be said without material inaccuracy, that it will be payable by him by virtue of his ownership. But this is not, I think, enough to take it outside the scope of s. 92. It is, in form and in substance, a tax on a chattel, in the same sense as a land tax is a tax on land. But the particular chattel in question is a chattel the very raison d'être of which is that it may serve as an instrument of trade commerce and intercourse. It is one of the normal everyday instruments of trade commerce and intercourse. And the Acts forbid it to be used in New South Wales, unless the tax is paid, in the performance of its only useful function. Of such a restriction or burden, so far as it affects inter-State trade commerce and intercourse it cannot, I think, be said that it "is imposed in virtue of or in reference to none of the essential qualities which are connoted by the description "trade, commerce, and inter-course among the States" " (per Dixon J. in Gilpin's Case [4] )" [5] . Kitto J. concurred in the view that the tax could not validly apply to vehicles used solely in inter-State trade even if "an appearance of some reasonable relation between the amount of the tax payable by an individual and his use of the roads might prevent a conflict with s. 92" [1] . Taylor J. in effect treated the decision in Willard v. Rawson [2] as the only possible ground for regarding the tax as capable of including vehicles exclusively engaged in inter-State trade and his Honour disposed of the decision in the manner already stated [3] .

[78]

In this action many plaintiffs are named but few could be chosen as proper plaintiffs. Those who are proper plaintiffs are individuals engaged in the business of the inter-State carriage of goods by road. For that purpose they use the public highways of Victoria. The vehicles they use are sometimes fully loaded, sometimes partly loaded and sometimes unloaded. None of the plaintiffs uses the whole of the Victorian network of public highways. But for the purposes of inter-State carriage they are free to use any of these highways. In the action declarations are sought (1) That Pt. II of the Commercial Goods Vehicles Act 1955 Vict. or ss. 26-33 thereof and the fourth and fifth schedules thereto or parts of such sections and schedules are contrary to s. 92 of the Constitution and beyond the powers of the Parliament of Victoria and invalid, or alternatively have no application to the owners of commercial goods vehicles whilst such vehicles are travelling along public highways in Victoria in the course of or for the purpose of inter-State trade commerce or intercourse or to persons driving such vehicles or to such vehicles whilst so travelling. (2) That ss. 6, sub-ss. (1), (2), (3), (4) and (5), and 17 (a) (b) and (d) of the Motor Car Acts of the State of Victoria or parts thereof are contrary to s. 92 of the Constitution and beyond the powers of the Parliament of Victoria and invalid, or alternatively have no application to owners, operators or drivers of commercial goods vehicles used on highways in Victoria exclusively in the course of or for the purpose of inter-State trade commerce or intercourse. Very wide declarations are therefore sought but, having regard to s. 2 of the Acts Interpretation Act 1930 Vict., the plaintiffs could not expect to obtain declarations in respect of any of the impugned legislation other than declarations that such legislation cannot validly apply to vehicles used exclusively in and for the purpose of inter-State trade commerce and intercourse.

[79]

The action came on for hearing before Taylor J. who, after hearing the evidence, referred the action to the Full Court under the provisions of s. 18 of the Judiciary Act 1903-1955. Of the two Acts the constitutional validity of which is challenged little need be said about the Motor Car Acts 1951-1956. Sections 6 and 17 (a) (b) and (d) of these Acts are indistinguishable in substance from the sections of the Motor Vehicles Taxation Management Act 1949-1951 and the Motor Vehicles (Taxation) Act 1951 N.S.W. which were held to infringe s. 92 of the Constitution in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [1] . The Motor Car Acts operate to make it unlawful for any person to drive a motor car on a Victorian highway without the vehicles being registered as required by the Act. The formula for calculating the registration fee as provided in the second schedule is to ascertain the power weight unit of the vehicle by adding together the sum of its horsepower and the weight in hundredweights unladen and ready for use and to multiply a sum of money by this power weight unit. In this way a considerable fee is arrived at. It is a fee which has no relation to a reasonable fee for inspecting a vehicle to see that it is in a fit mechanical condition and otherwise suitable for use on the Victorian highways or for giving it a registration number so that it might readily be indentified. The fee must be paid as a condition precedent to the vehicle's being lawfully driven on the Victorian highways for a period of twelve months. The amount of the fee bears no relation to the distance the vehicle is driven along the highways. It is paid for the privilege of using the highways at all. It cannot be described as a contribution towards the maintenance of the highways to make good the damage done to them by the use actually made of them by the vehicle. Sections 6 and 17 (a) (b) and (d) of these Acts must for the reasons given in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [1] be held to be invalid in respect of vehicles used exclusively in and for the purpose of inter-State trade commerce or intercourse. See the joint judgment of Dixon C.J., McTiernan and Webb JJ. [2] ; Williams J. [3] ; Fullagar J. [4] ; Kitto J. [5] and Taylor J. [6] . The present Victorian Act is the same in all material respects as the Act that was held to be valid in Willard v. Rawson [1] but in my opinion that decision is inconsistent with the reasons of the Privy Council in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [2] , an opinion which I first expressed, somewhat in sorrow, in Nilson v. State of South Australia [3] . The dissenting judgment of Dixon J., as he then was, in Willard v. Rawson [1] should now be accepted as correct.

[83]

Part II which is headed "Contributions to Road Maintenance" contains ss. 25 to 33 inclusive of the Act. Section 25 exempts from the operation of Pt. II "(a) any vehicle the load capacity of which (together with any trailer for the time being attached thereto) is not more than four tons; or (b) any vehicle while being used solely for any or some of the purposes specified in the Third Schedule or while travelling unladen directly to or from the business premises of the owner of the vehicle so as to be so used or after having been so used." Section 26 which is the charging section is in the following terms: "(1) The owner of every commercial goods vehicle shall as provided by this Part pay to the Board towards compensation for wear and tear caused thereby to public highways in Victoria a charge at the rate prescribed in the Fourth Schedule. (2) Such charge shall become due at the time of the use of any public highway by the vehicle and if not then paid shall be paid and recoverable as in this Part provided. (3) Any charge payable under this Part shall be a civil debt due to the Board by the owner of the vehicle concerned and, without affecting any other method of recovery provided by this Part, may be recovered in any court of petty sessions as a civil debt recoverable summarily or in any court of competent jurisdiction." Sections 27 to 29 require the owner of the vehicle to keep an accurate daily record of all journeys of the vehicle along public highways in Victoria and within fourteen days of the end of each month to forward to the head office of the board in Melbourne in respect of each vehicle the record for the previous month and the amount of all moneys owing by way of charges payable in respect of that month. Section 30 is in the following terms: "(1) All moneys received by the Board by way of charges under this Part shall be paid into the Country Roads Board Fund to the credit of a special account to be called the "Roads Maintenance Account". (2) Money to the credit of that account shall be applied only on the maintenance of public highways (including grants to municipalities for that purpose)." Section 31 creates certain offences, one offence being failure to pay to the board as required by Pt. II any charges payable in respect of any vehicle. Section 32 relates to prosecutions for an offence and to the recovery of any charges which have not been paid to the Board. Section 33 contains certain evidentiary provisions. The third and fourth schedules are in the following terms: "Section 25, Third Schedule, (1) The carriage of berries and other soft fruits, unprocessed market garden and orchard produce (other than potatoes and onions), milk, cream, butter, eggs, meat, fish or flowers, and, on the return trip, any empty containers used on the outward trip for the carriage of any such commodity. (2) The carriage of livestock to or from agricultural shows or exhibitions, or direct from farm to market or from market to farm or from farm to farm or to or from agistment. Section 26, Fourth Schedule, (1) The rate of the charge to be paid in respect of every vehicle shall be one-third of a penny per ton of the sum of - (a) the tare weight of the vehicle; and (b) forty percentum of the load capacity of the vehicle - per mile of public highway along which the vehicle travels in Victoria. (2) In assessing such charge fractions of miles and fractions of hundred-weights shall be disregarded but hundred-weights (in relation to both tare weight and load capacity) shall be taken into account as decimals of tons."

[84]

Part II therefore consists of s. 25 exempting certain commercial goods vehicles from its operation; s. 26 which requires the owner of every commercial vehicle to pay to the board towards compensation for wear and tear caused thereby to public highways in Victoria a charge at the rate prescribed in the fourth schedule; s. 30 which provides that all moneys received by the board by way of charges under this part shall be paid into a special Roads Maintenance Account and that the moneys to the credit of that account shall be applied only to the maintenance of public highways; and certain incidental sections required to make the charges imposed by s. 26 effective. The fourth schedule is important because it prescribes the rate of charge. The charge is on a ton-mile basis and the schedule provides a simple formula which enables the owner of the vehicle to calculate the amount of the charge with precision. Part II of the Commercial Goods Vehicles Act like the previous Victorian Act which was held invalid in Armstrong v. State of Victoria [1] has the merit of simplicity but it has also the merit of clarity which that Act lacked. The operator, intra-State or inter-State, knows exactly what he has to do in order to comply with its provisions. It also has the merit that its provisions cannot cause any delay in the making of the inter-State journey. No permit is required to cross the Victorian border and no moneys have to be paid as a condition precedent to the vehicle's entering or leaving Victoria. The legislation is of a general character. It does not discriminate against inter-State trade. It applies to all commercial vehicles using the Victorian highways not exempted by s. 25, whether on an intra-State or an inter-State journey. The same vehicles are exempted from the charge, whether they are travelling intra-State or inter-State. If their load capacity is not more than four tons, or if they are engaged in the carriage of the goods or chattels referred to in the third schedule, they are exempt. Accordingly the legislation on its face embodies all the characteristics which the majority of this Court considered legislation imposing a charge should embody in order to comply with s. 92. Part II is headed "Contributions to Road Maintenance". Section 26 states that the contribution is towards compensation for wear and tear caused by the vehicle to public highways in Victoria. These statements by the Parliament of Victoria are not of course conclusive upon a question of constitutional validity but they are entitled to respect and should not lightly be disregarded: Australian Communist Party v. The Commonwealth [1] ; Abitibi Power & Paper Co. Ltd. v. Montreal Trust Co. [2] . Where the plaintiff alleges that legislation is invalid because it infringes s. 92 the burden must be on him prima facie to prove the invalidity. The invalidity may and generally does appear from the provisions of the legislation itself. But in the present case the legislation on its face is valid. It purports to charge the owner of the commercial goods vehicle only for the use he actually makes of the Victorian highways. It is a charge on a ton-mile basis calculated upon a formula which is reasonable on its face. In the joint judgment of Dixon C.J., McTiernan and Webb JJ. in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [3] the following passage appears: "Prima facie it" (that is the legislation imposing the charge) "will present that appearance" (that is the appearance of a real attempt to fix a reasonable recompense for the use of the highway) "if it is based on the nature and extent of the use made of the roads (as for example if it is a mileage or ton-mileage charge or the like); if the proceeds are devoted to the repair, upkeep, maintenance and depreciation of relevant highways, if inter-State transportation bears no greater burden than the internal transport of the State and if the collection of the exaction involves no substantial interference with the journey. The absence of one or all of these indicia need not necessarily prove fatal, but in the presence of them the conclusion would naturally be reached that the charge was truly compensatory" [4] . Williams J. said: "It does not appear to me that a charge could be imposed which would not enter the deterrent field which was more than a reasonable charge for the use of the road over which the vehicle, having regard to its size and weight and other characteristics, intends to travel and it appears that the charge to be reasonable would have to be based mainly upon the extent of the wear and tear the road would be likely to suffer from the projected journey. All traffic, light or heavy, presumably causes some wear and tear to the roads, but presumably also the heavier the vehicle the more wear and tear that is caused to the roads. It is for the cost of this extra wear and tear, if any, that it would be reasonable to charge. It is probably not susceptible of any precise calculation. But an approximation should be possible. The onus would be on the plaintiff to prove that the charge was unreasonable and the court would be disinclined, I should think, to upset any charge that was reasonable on its face and supported, if challenged, by a calculation based on some appropriate formula" [1] . Fullagar J. said: "Any such charge, to be valid, must not discriminate against inter-State traffic, and some real connection - some relation of quid pro quo - must appear between the charge and the maintenance of the roads. Subject to those two points, I think that a fair degree of latitude must be allowed in prescribing the incidence of a charge, and that practical considerations attending the collection of a charge must be borne in mind in considering its validity" [2] . The statements in these passages were not of course intended to lay down rigid rules for the calculation of the charge. They were intended to indicate the general character of a charge that could be upheld. They should not be read as though they were the provisions of a statute. Applying the indicia there stated in this manner it is apparent, I think, that the plaintiffs are unable to shift the initial onus of proof by resorting to the provisions of Pt. II of the Commercial Goods Vehicles Act. The legislation on its face exhibits all the characteristics required to indicate that the charge imposed is prima facie no more than it is claimed to be by s. 26, that is, a contribution towards compensation for the wear and tear caused by the vehicle to public highways in Victoria.

[86]

But that is not the end of the case. However reasonable the charge may appear to be on its face the ultimate question must be whether it is in fact reasonable at the time it is imposed. The owner may be required to pay a sum which could not in fact bear any real relation to the wear and tear caused to the highways by the particular journeys. In that case the charge could not be reasonable compensation for the damage suffered and would impose an undue burden on inter-State trade. The relation between the amount of the charge and the damage done to the highways must therefore be examinable. In the present action evidence was given on this issue. It proves to my mind that the amount of the charge produced by the operation of the formula in the fourth schedule is in fact reasonable. I shall not refer to the evidence in any detail. It consists mainly of the estimates contained in exhibit 1 and exhibit B and the oral evidence of Mr. Hosking the planning and research engineer of the Country Roads Board of Victoria. These estimates show that the annual sum required to maintain the whole of the Victorian roads in proper order and repair in the year 1954-1955 was £15,148,000. The whole of this sum was not in fact expended. Only £12,648,000 was spent and a further expenditure of £2,500,000 was required to complete the work. The total length of the Victorian roads is 80,000 miles of which 3,850 miles are classed as State highways and 9,789 miles as main roads. The expenditure required for the maintenance of State highways was at the rate of £560 per mile and the expenditure required for the maintenance of main roads at the rate of £325 per mile. The expenditure required for the maintenance of the whole of the Victorian roads was £190 per mile. Exhibit 1 divides the total number of motor vehicles registered for Victoria in March 1955, that is 559,000, into ten classes which can broadly be divided into two sub-classes, the first sub-class comprising private cars, business cars, trucks with a nominal carrying capacity of under two tons and trucks with a nominal carrying capacity of two to three tons and the second sub-class comprising (e) trucks with a nominal carrying capacity of three to four tons, (f) trucks with a nominal carrying capacity of four to five tons, (g) trucks with a nominal carrying capacity of five to six tons, (h) trucks with a nominal carrying capacity of more than six tons, (i) semi-trailers and (j) 'buses. There are 34,000 vehicles in classes (e) to (j). These classes comprise the vehicles the weight of which causes considerably more damage to the roads than vehicles in the first sub-class and this damage increases rapidly as the weight increases. After an examination of the estimated average annual mileage of vehicles in each class, the average gross weight of vehicles in each class, the average load carried by vehicles in each class expressed as proportion of load capacity and the cost of construction of roads designed to carry (a) axle loads in excess of 8,000 lbs. and up to 17,000 lbs. (the highest permissible load in Victoria) and (b) axle loads up to 8,000 lbs., it was estimated that the maintenance costs attributable to vehicles with permissible axle loads in excess of 8,000 lbs., that is the vehicles in classes (e) to (j), was 62% of £15,148,000, that is 9.4 millions. But the only vehicles subject to the charge imposed by s. 26 of the Commercial Goods Vehicles Act are those in classes (f) to (i) inclusive and of this 9.4 millions 7.4 millions is attributable to the vehicles in these classes. After allowing for the amounts paid by the Commonwealth to the State of Victoria under the Federal Aid Roads Act towards the construction and maintenance of Victorian roads (half this amount being allocated in the estimates to maintenance and the other half to construction) and for the registration fees payable under the Motor Car Acts the amount of maintenance cost expressed as pounds per vehicle in each class was for class (e) £121, (f) £156, (g) £248, (h) £296, (e) £486 and (j) £346. These amounts expressed in pence per ton-mile were (e) 0.37, (f) 0.37, (g) 0.38, (h) 0.39, (i) 0.41 and (j) 0.39. As a third of a penny per ton-mile is 0.33 and this figure is below any of these amounts it cannot be said that one-third of a penny per mile is an unreasonable amount to include in the fourth schedule. Exhibit 1 shows that the amount actually collected under Pt. II of the Commercial Goods Vehicles Act for the period 1st April 1956 to 28th February 1957 was £1,083,182 and that it was estimated that the amount which would be collected in the first twelve months of the operation of the legislation if all due payments were made in accordance with the Act was £2,015,000. As the total expenditure required for the maintenance of the Victorian roads was £15,148,000 the truth of the statement in s. 26 of the Commercial Goods Vehicles Act that the charge is towards compensation for wear and tear caused by vehicles to public highways in Victoria becomes very apparent. And it becomes even more apparent when a dissection of the 7.4 millions of the expenditure for maintenance attributable to the vehicles in classes (f) to (i) inclusive indicates that after deducting from this sum the proper allowances for registration fees, Commonwealth grants, estimated collections under s. 26 and estimated amounts for third schedule exemptions, there remains a discrepancy of 3.9 millions, this sum representing the extent to which damage done to the roads by the vehicles in these classes is not recouped from the charges imposed by s. 26 and must be borne by the general revenues of the State.

[87]

It was contended that the calculation of £15,148,000 as the cost of maintenance of the Victorian roads was excessive because several items were included in this sum which should not be there. In the first place it was objected that £2,500,000 should not have been included because it was not spent but to my mind it was rightly included because the inquiry is what amount is required to make good the damage done to the roads and in this inquiry the whole amount required to make good this damage should be included whether it has been actually spent or not. Exhibit B contains a dissection of the amount actually expended, £12,648,000, between the road-making authorities, that is to say, the Country Roads Board, the Greater Melbourne Municipalities, other municipalities, and other government authorities. This dissection shows that £6,176,000 was expended by the Country Roads Board, £2,650,000 by Greater Melbourne Municipalities, £3,430,000 by other municipalities and £392,000 by other government authorities. It was objected that the moneys spent by the municipalities on keeping the roads in repair within their geographical areas was primarily their responsibility and payable out of the rates and should not have been included in the calculation. But it is obvious that this item was rightly included. There is no less reason why a contribution should not be made towards the expenses incurred by municipalities in making good the damage done to their roads than there is why a contribution should not be made to the Country Roads Board to make good the damage done to the State highways and main roads for the maintenance of which it is responsible. Exhibit B also shows that included in the sum of £12,648,000 is the sum of £1,906,000 said to be the estimated cost of that portion of reconstruction costs necessary for maintaining a reasonable running surface with present grading alignment and width. It was objected that this item should not have been included in the calculation. It was submitted that the only maintenance towards which the inter-State carrier could be called upon to contribute was in effect keeping the existing surface in repair and if the damage was such that the existing surface could not be repaired and the road had to be reconstructed the expenditure required for this purpose was a capital cost and could not be charged against maintenance. But the whole of the cost of reconstruction is not included in the estimate of £15,148,000 but only part of that cost based on an estimate of the expenditure necessary to maintain a reasonable running surface on the highway as originally constructed. The expenditure towards which the inter-State carrier may reasonably be expected to contribute is at least the expenditure necessary to maintain the road in such a condition that he may use it and if a portion of the road becomes unusable until it is reconstructed the expenditure necessary to carry out this reconstruction is, I should think, part of the expenditure required to maintain the road in this condition. But in the estimate he has only been charged with part of this expenditure, that is with the "maintenance element", so that in this respect he has nothing to complain about. Another objection to the calculation was that it takes into account the whole network of State highways whereas it should only have taken into account what the passage already cited from the joint judgment designates as "relevant highways". No doubt the inter-State carrier mainly uses the principal inter-State highways in the course of his business. But he has to collect the goods he carries somewhere and deliver them somewhere and for these purposes he may require to use any part of the State network. Section 92 protects the freedom of the inter-State trader to use every road in the State. In such a calculation therefore it is reasonable to take into account this network as a whole. The formula in the fourth schedule provides that forty per cent of the load capacity of the vehicle shall be added to the tare weight of the vehicle and the one-third of a penny per ton shall be multiplied by this addition. Vehicles may often carry a load which is lighter than their total load capacity either because they may not be fully loaded or if fully loaded the goods may be light in weight. They may sometimes have to make the return journey empty. The inclusion in the multiplier of only forty per cent of the load capacity would appear to provide a reasonable margin for such contingencies. It must be emphasised that a charge for the use of the roads in order to be compensatory need not be a precise calculation of the amount of the exact damage done to a particular road on a particular journey by a vehicle of a particular weight carrying a particular load. Calculations as precise as this would be impossible. They would require a separate calculation of the expenditure required to maintain each road or at least each class of road in good repair and might require the vehicle to go from one weighbridge to another to weigh its load from time to time. Charges based on such calculations could become intolerably complicated and the journey of a vehicle which had to be continuously weighed could be indefinitely delayed. The passages from the judgments already cited stress the fact that the charge need not be precisely calculated. It is lawful if it is broadly calculated to provide reasonable compensation for the average damage done to the roads by vehicles carrying average loads. It was also objected that in the calculations all sorts of other items should have been taken into account, for instance the direct taxes such as income and pay roll taxes and the indirect taxes resulting from customs and excise duties imposed on petrol, tyres and tubes that inter-State operators have to pay. It was even objected that road transport contributes to the prosperity of the community though the precise amount of the contribution is immeasurable but that some credit should be given for this item in the computation of a reasonable charge. Contentions such as these illustrate the extent to which the plaintiffs are prepared to go. Taxes whether direct or indirect of the kind mentioned have nothing to do with the amount required to maintain the highways of a State in a proper condition of repair. It is the expenditure directly required for this purpose and no other expenditure that is relevant. The contribution the inter-State carrier may be required to make to the upkeep of the roads if otherwise reasonable cannot become unreasonable because he incurs other expenses in the course of his business. The only question is whether he is being charged a reasonable sum for the use he makes of a facility provided by the State which he is entitled to use as of right but without which he could not carry on his business at all. It was contended that one reason why the obiter dicta of the majority judges should be abandoned was that it is really impracticable to calculate a reasonable charge. The weather it was said contributes to the wear and tear of the roads and it was contended that this was wear and tear which could not be measured. In my opinion it need not be measured. The operation of s. 92 does not depend on the weather. It protects the right of the inter-State carrier to use the roads in all weathers. The evidence is that it is not the weather but the use of the roads in wet weather that really causes the damage and there is no suggestion that inter-State operators take care not to cause this damage by suspending their journeys whenever it rains.

[89]

Finally it was objected that the charge imposed by s. 26 of the Commercial Goods Vehicles Act is of indefinite duration so that, even if it is reasonable at the present time, it may become unreasonable in the future if improved methods of road construction and maintenance and more suitable tyres and such like inventions lessen maintenance costs. It was contended that if Pt. II of the Act is now held to be valid it could never subsequently become invalid however much circumstances may change because there is no room for a legal theory that valid acts can become invalid or vice versa because of changed facts. Therefore the legislation imposing the charge must be invalid ab initio and the fact that the legislation is permanent is fatal to its validity. But an Act must be valid, at least temporarily, if it is valid when it is passed. If a valid Act can never subsequently become invalid so much the worse for the plaintiffs. I can see no reason why an Act which is valid may not subsequently become invalid from change of circumstances. A Commonwealth Act passed at the height of hostilities which could only be justified by the defence power as extended in wartime would in my opinion become invalid when that power had contracted in peacetime to such an extent that it is no longer wide enough to support it; Australian Woollen Mills Ltd. v. The Commonwealth [1] ; Australian Textiles Pty. Ltd. v. The Commonwealth [2] and R. v. Foster [3] . We are here concerned with a State Act and a State Act valid at its inception can subsequently be invalidated under s. 109 of the Constitution by a paramount Commonwealth law. Having regard to s. 2 of the Acts Interpretation Act 1930 Vict. Pt. II of the Commercial Goods Vehicles Act could not be invalid at its inception or subsequently become invalid in its application to intra-State trade. It could only be invalid in its application to inter-State trade. If the charge imposed by s. 26 is reasonable under present circumstances and therefore does not infringe s. 92 the legislation must at present be valid in its application to inter-State trade. But if circumstances changed to such an extent that a charge which was reasonable at its inception became unreasonable in the future - if for instance some invention enabled a State to construct a network of roads that required no maintenance - a charge imposed on inter-State operators as a contribution to wear and tear which was no longer taking place could not continue to be supported as compensatory. It is a case of an Act intended to be permanent dying because it has been smitten by a superior law.

[96]

The relevant passage in the joint judgment reads: - "For the purposes of that provision" (i.e. s. 92) "it may perhaps be said with some confidence that if a charge is imposed as a real attempt to fix a reasonable recompense or compensation for the use of the highway and for a contribution to the wear and tear which the vehicle may be expected to make it will be sustained as consistent with the freedom s. 92 confers upon transportation as a form of inter-State commerce. But if the charge is imposed on the inter-State operation itself then it must be made to appear that it is such an attempt. That it is so must be evident from its nature and character. Prima facie it will present that appearance if it is based on the nature and extent of the use made of the roads (as for example if it is a mileage or ton-mileage charge or the like); if the proceeds are devoted to the repair, upkeep, maintenance and depreciation of relevant highways, if inter-State transportation bears no greater burden than the internal transport of the State and if the collection of the exaction involves no substantial interference with the journey. The absence of one or all of these indicia need not necessarily prove fatal, but in the presence of them the conclusion would naturally be reached that the charge was truly compensatory In speaking of "relevant highways" it is intended to mark the importance of recognizing the size of Australian States It is for the use of certain roads that it is supposed the recompense is made, and not for the use of roads of an entirely different character many hundreds of miles away. It may of course be immaterial, if the charge is based on average costs of road care, repair and maintenance, which may well give a lower rate than if it were based on the costs in connection with the highway used. It does not seem logical to include the capital cost of new highways or other capital expenditure in the costs taken as the basis of the computation. It is another matter with the recurring expenditure incident to the provision and maintenance of roads. The judgment whether the charge is consistent with the freedom of inter-State trade must be made upon a consideration of the statutory instrument or instruments by and under which it is imposed. The fault with s. 18 (4)-(6)" (i.e. of the New South Wales Act then under consideration) "is that these provisions confer an authority which ex facie gives no assurance that the charge imposed under it will conform with what amount to constitutional necessities " [1] .

[98]

(1) the Commercial Goods Vehicles Act by s. 2 defines commercial goods vehicle as any motor car together with any trailer which is used or intended to be used for carrying goods for hire or reward, with specific exceptions. Part II of the Act is headed "Contributions to Road Maintenance" and includes ss. 25 to 33. Section 25 provides that Pt. II shall not apply with respect to any vehicle the load capacity of which (together with any trailer for the time being attached thereto) is not more than four tons; or to any vehicle while being used solely for any or some of the purposes specified in the third schedule. Section 26 provides that the owner of every commercial goods vehicle shall pay to the Transport Regulation Board under the Transport Regulation Act 1955 towards compensation for wear and tear caused thereby to public highways in Victoria a charge at the rate prescribed by the fourth schedule; such charge shall become due at the time of the use of any public highway by the vehicle and if not then paid shall be paid and recoverable as provided; and any charge shall be a civil debt due to the board by the owner of the vehicle. Section 27 provides that the owner shall keep an accurate daily record of all journeys along public highways in Victoria and shall retain it for six months after completion of any journey and on demand make available to the board a copy of each record for inspection. Section 28 provides that the owner shall not later than the fourteenth of each month deliver to the board the record for the previous month and of the charges owing if not already paid. Section 29 provides that the owner may arrange with the board as to the time and place for paying charges. Section 30 provides that all moneys received by the board by way of charges shall be paid into the Country Roads Board Fund to the credit of a special account to be called "Road Maintenance Account"; and that moneys to the credit of that account shall be applied only on the maintenance of public highways (including grants to municipalities for that purpose). Section 31 makes failure to keep and deliver records or pay charges an offence punishable by fine and by s. 32 the court may order payment of the road charges in addition to the fine. Section 33 enacts evidentiary provisions. The fourth schedule provides that the rate of the charge to be paid in respect of every vehicle shall be one-third of a penny per ton of the sum of the tare weight of the vehicle and forty per cent of the load capacity of the vehicle per mile of public highway along which the vehicle travels in Victoria.

[100]

As to the Commercial Goods Vehicles Act: The question whether the road charge is valid must be decided upon a consideration of the Act itself which on its face must give an assurance that the charge conforms with constitutional necessities. That is required by the joint judgment as I understand it. The good faith of any Australian Parliament cannot be questioned. But it is one thing to refrain from questioning good faith and quite another to attribute infallibility. We are not at liberty to take for granted everything that Parliament says even if we desired to do so. When as here we are considering whether an Act of Parliament is constitutional on its face we are required to find in its terms and not elsewhere an assurance that it is constitutional. So I thought when I adhered to the joint judgment and nothing has since occurred to induce me to change that opinion. I find it difficult to see how anything short of an assurance on the face of the Act could meet constitutional requirements, as otherwise the test of constitutionality would be transferred from the Act to something purporting to be done under the Act. But the validity of what purports to be done under the Act could in turn be determined only from a consideration of the terms of the Act which for this purpose must be precise and imperative. A road charge must have statutory authority and be within it, and in turn the statute imposing the charge or giving the authority must comply with the Commonwealth Constitution. So we are again thrown back on the Act itself in considering the constitutionality of the road charge. As to this a statutory provision directing even a reasonable charge has been held by this Court to be too indefinite: Hughes & Vale Pty. Ltd. v. State of Queensland [1] . The Commercial Goods Vehicles Act would appear to be at least consistent with the joint judgment in so far as it purports to impose a charge only for a contribution towards wear and tear of roads, is based on the extent of the use of the roads, being a ton-mileage charge, the collection of the charge involves no interference with the journey, and the proceeds are to be applied only to maintenance of public highways. But the Act fails to comply with the joint judgment in that it does not on its face give an assurance that it conforms to constitutional requirements, seeing that there is nothing in the Act which shows how the multiplier one-third of a penny per ton is arrived at. If the figure were one-third of a shilling the reasoning in support of an assurance ex facie would necessarily be the same, which negatives any such assurance. Again there is no assurance on the face of the Act that only the cost of maintenance of relevant highways is taken into account in assessing the charge or that the cost of maintenance of public roads generally is not greater than the cost of maintenance of relevant highways. A further objection is that the charge like the Act is of indefinite duration. As to this see Hughes & Vale Pty. Ltd. v. State of Queensland [1] . To conform to constitutional requirements the charge should be limited always to the actual cost of maintenance so far as that is practicable. Really to comply with the joint judgment the Act should contain a formula for ascertaining wear and tear on relevant highways and supply the figures or indicate the source of the figures for the calculation, and provide also for reviews say quarterly, half-yearly or annually to insure that the road charge will never substantially exceed maintenance cost of the relevant highways.

[117]

It is no doubt technically correct to say that the views of the majority in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [1] were expressed obiter. But the whole matter was treated as a major question. It was fully considered, and I do not think it should be reopened. For myself, I am of the same opinion now as I was then, although I am as conscious now as I was then of the force of the criticism directed by Kitto J. at the view with which his Honour disagreed. I would only repeat and emphasise that, in my opinion, public highways are not rightly regarded for present purposes as "facilities" provided by a State for those who use them. What is, in my opinion, permissible in relation to public highways is not the making of a charge for the use of something which the State can at will allow or forbid to be used. What is permissible (whether you call it a "compensation" or a "recompense" or what you will) is the exaction of a contribution towards the maintenance of something which can be used as of right. The distinction is, to my mind, both real and important. For, if what is permissible were of the former character, the States must obviously be very much at large. If, on the other hand, what is permissible is of the latter character, the powers of the States are defined, and the Courts have a power of investigation and ultimate control, which can be exercised to prevent an infringement of s. 92, the final question in each case being whether what is exacted is in truth and in substance, and is no more than, a contribution towards the maintenance of public highways. I emphasise these matters partly because I observe that the headnote to the report of Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [1] speaks of charges for the use of highways, and partly because I thought that part of the argument before us on the validity of the particular statute proceeded on a wrong view of the real nature of the question at issue. For the rest, I refer to what I said in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 2] [2] .

[119]

Acceptance of the majority opinion on the general question in that case is, in my opinion, decisive of the present case, and I can express my view very shortly. In the judgment of Dixon C.J. and McTiernan and Webb JJ. it was said that, if a charge is imposed as "a real attempt to fix a reasonable recompense or compensation for the use of the highway and for a contribution to the wear and tear which the vehicle may be expected to make" [3] , it will be sustained as consistent with s. 92. That it is such an attempt, it was said, must be evident from its nature and character. Their Honours then set out certain indicia, which, they said, might be accepted as showing prima facie that it was such an attempt [4] . Part II of the Victorian Act has obviously been framed in the light of this passage, which was read several times during the argument, and which need not be set out here. Every one of the indicia mentioned is present here. The charge is based on ton-mileage, and is thus related on its face to the nature and extent of the use made of roads. Section 30 of the Act requires all moneys received by the board to be paid into the Country Roads Board Fund (established under the Country Roads Act) to the credit of a special "Roads Maintenance Account", and money to the credit of that special account is to be applied only to the maintenance of public highways. Inter-State transport bears no greater burden than the internal transport of the State. And the collection of the charge involves no interference with any inter-State journey. It is to be added that the charge is not shown to be quantitatively unreasonable either in the sense of being out of proportion to the actual cost of maintenance or in the sense of imposing a practically prohibitive burden. It is to be added also that the State adduced evidence to show the actual basis on which the amount of the charge had been arrived at. Anything even approximating to mathematical accuracy is obviously out of the question, but the evidence does, I think, establish that there is what Frankfurter J. (in Capitol Greyhound Lines v. Brice [1] ) has called a "relationship between what is demanded and what is given by the State". It shows, I think, that there has been a "real attempt to fix a reasonable recompense or compensation".

[125]

Their Honours were necessarily speaking in abstract and somewhat general terms, and it may be that notwithstanding what seem to me significant differences of expression there is a single underlying conception. But if there is, I must confess that it has eluded me. If s. 92 prescribed reasonableness in the statutory treatment of inter-State trade commerce and intercourse, there would be no difficulty. But it prescribes absolute freedom; and that, I take it, includes absolute freedom in the use of public roads. Indeed s. 92 virtually says as much by its reference to internal carriage. When it is said that s. 92 assumes the existence of highways and that they are there for use "according to the ordinary laws of the State" [1] , I should interpret this to mean (as applied to public highways which cannot be dealt with by the State on the basis of property (1)) in accordance with such ordinary laws of the State as are consistent with the existence of the guaranteed freedom in respect of the use of such roads for inter-State travel. The nature of the freedom is of course another matter; and I understand that it is in a consideration of the nature of the freedom that justification is seen for a doctrine which distinguishes, in respect of the use of a road, between the movement - the travelling along the road - and the wear and tear on the road which inevitably results from the travelling, and, while admitting that a charge cannot be imposed in respect of the movement as such - the mere travelling - maintains that a charge related to the wear and tear may be imposed. This is apart altogether from any question as to a law requiring a road user to pay for the repair of specific damage which is identifiable as having been caused by him in the course of inter-State travel, so that others may not be impeded by that damage in their use of the same road. I am not sure whether the charge which it is said may be made is considered to be justified as (1) a recompense to the State for services rendered to the road-user by the provision of whatever surfaces he may find as he makes his particular journey; or (2) a reimbursement of the cost which the State would incur if it were to make good (a) the wear and tear caused by the particular traveller or a class of travellers to which he belongs, or (b) the extra wear and tear caused by his vehicle, or the vehicles of the class to which he belongs, over that which is caused by some other vehicles - irrespective, in either case, of whether the State actually proceeds to make good that wear and tear or elects to spend the money on other roads; or (3) a quid pro quo for the benefit which the particular traveller derives from the existence of whatever surfaces they may be that he traverses. There are expressions in the judgments which may be thought to support each of these ideas. But while each of them seems to me to present great difficulties, difficulties standing in the way both of its acceptance and of its practical application, my fundamental perplexity arises from this, that if it is conceded that a person enjoys a constitutional immunity from all charges upon his going inter-State by road, I do not see how it can be asserted, without contradicting the concession, that that person is not immune from a charge imposed and measured by reference to an aspect, or a necessary incident or consequence, of his going inter-State by road. Yet I cannot suppose that I would be right in understanding the judgments as involving mutually repugnant propositions. It can hardly be that the judgment of Portia is being paralleled. But why it would be erroneous to suggest that analogy is a question to which at present I do not see the answer. I can hardly think it would be said that the freedom exists for the abstract "going" which travel imports, but does not exist for the physical acts which constitute the inter-State progression. Nor, I imagine, is it considered that what the State may charge for is the provision of something over and above the roads which s. 92 assumes, for the distinction seems too clear between improving the roads themselves and providing something additional to them.

[129]

There was, of course, general agreement among the members of the Court who formed the majority that s. 92 of the Constitution does not preclude the imposition of charges for the use of public roads and highways by vehicles engaged exclusively in inter-State trade. But the initial difficulty is to ascertain and identify the basis upon which it is said that this may legitimately be done. In the joint judgment of Dixon C.J., McTiernan and Webb JJ., it was said that "if a charge is imposed as a real attempt to fix a reasonable recompense or compensation for the use of the highway and for a contribution to the wear and tear which the vehicle may be expected to make it will be sustained as consistent with the freedom s. 92 confers upon transportation as a form of inter-State commerce. But if the charge is imposed on the inter-State operation itself then it must be made to appear that it is such an attempt. That it is so must be evident from its nature and character. Prima facie it will present that appearance if it is based on the nature and extent of the use made of the roads (as for example if it is a mileage or ton-mileage charge or the like); if the proceeds are devoted to the repair, upkeep, maintenance and depreciation of relevant highways, if inter-State transportation bears no greater burden than the internal transport of the State and if the collection of the exaction involves no substantial interference with the journey" [2] . Williams J., on the other hand, expressed the view that "a State is free to make such a charge as will, having regard to the benefit the carrier derives from the facility, not be an undue burden on him; and a charge will not be burdensome providing, looking at the matter broadly, the benefit flowing from the provision of the facility more than outweighs the burden flowing from the imposition of the outgoing" [1] . At a later stage he said: - " that the charge to be reasonable would have to be based mainly upon the extent of the wear and tear the road would be likely to suffer from the projected journey" [1] . "All traffic", he added, "light or heavy, presumably causes some wear and tear to the roads, but presumably also the heavier the vehicle the more wear and tear that is caused to the roads. It is for the cost of this extra wear and tear, if any, that it would be reasonable to charge. It is probably not susceptible of any precise calculation. But an approximation should be possible" [1] . Fullagar J. was of the opinion that persons using roads exclusively for the inter-State carriage of goods or passengers "may be called upon to make a contribution towards the cost of maintaining something from which they may fairly be regarded as deriving a benefit over and above that which is derived by the community as a whole. In making such a contribution they are not really paying a price for their coming and going. They are paying a price for something which makes their coming and going safer, easier, or more convenient than it would be if the highways which they use were allowed to fall into disrepair or decay" [2] . But he foresaw serious difficulties in respect of both quantification and incidence in attempting to fix a contribution which would be valid and he did not endeavour to anticipate these difficulties except to say that any such charge in order to be valid must bear some real relation to the maintenance of the roads and must not discriminate against inter-State traffic [3] . The general tenor of these observations leads me to think, however, that what his Honour had in mind was a charge commensurate with the benefit which such persons may be regarded as receiving over and above that which is received by the community as a whole.

[131]

Without attempting an examination of the ground, or grounds, upon which it was thought that the right to make such charges may be reconciled with s. 92 of the Constitution it may be said that there was some general agreement that the upper limit to road charges which may properly be exacted from persons operating vehicles in the course of inter-State trade is fixed by the concept of reasonableness. Fullagar J. did not use this expression but it would appear to be involved in his statement that "some real connection - some relation of quid pro quo - must appear between the charge and the maintenance of the roads" [3] . But reasonableness, alone, is an abstract concept and does not by itself provide a test for determining what charges may or may not be made; it is a useful guide if, and only if, we are aware of the various matters which must be considered when the necessity arises of determining whether particular charges are or are not reasonable. Accordingly the joint judgment purports to specify those matters; the charge must represent the result of "a real attempt to fix a reasonable recompense or compensation for the use of the highway and for a contribution to the wear and tear which the vehicle may be expected to make" [1] and the various characteristics which will invest a charge with the appearance of such an attempt are specified in the passage from the joint judgment already quoted. I take the relevant passages in this judgment to mean that, in considering whether any particular charge is reasonable, it is permissible to inquire whether it can be said to have been based upon some pre-estimate of the damage which heavier vehicles are calculated to cause to the roads which they use. Williams J., on the other hand appears to have adopted a less liberal view. After pointing out that heavier vehicles presumably cause more damage to the roads than lighter traffic he added that it was for the cost of the extra wear and tear that it would be reasonable to charge and, as already mentioned, the same idea seems to underlie the observations of Fullagar J.

[135]

The gist of the evidence which was adduced in the case is contained in an exhibit which furnishes a great deal of information concerning the number and classes of vehicles registered in Victoria (559,000) their estimated average annual mileages and ton mileages, a comparison of the cost of constructing and maintaining roads and highways for various classes of traffic and estimates of the degree of damage done to roads by heavy vehicles, that is to say, vehicles having an axle load of 8,000 pounds or more, or, approximately, a carrying capacity in excess of four tons. It is unnecessary to traverse the whole of this evidence but for the purposes of the observations which will shortly be made it is desirable to refer to some of the details. Of the 559,000 vehicles said to be registered in Victoria nearly 30,000 are vehicles having a carrying capacity of more than four tons and some unspecified number of the latter class of vehicles is engaged exclusively in inter-State trade. The roads of the State upon which vehicles registered in Victoria may lawfully operate extend over 80,000 miles and of such roads 3,850 miles are State highways and 9,789 miles are classified as main roads. The cost of the construction of roads designed to carry axle loads of up to 8,000 pounds is said to be twenty-three per cent less than the cost of roads designed for carrying heavier traffic. Maintenance costs, it is further said, should be apportioned on the same basis and the cost of necessary maintenance to the roads of the State in the year 1954-1955 was expressed to be £15,148,000 though the whole of this sum was not in fact spent. The annual ton-mileages of the heavier vehicles is said to represent fifty-one per cent of the annual ton-mileages of vehicles registered in Victoria and, up to a point, the exhibit referred to treats the degree of road damage occasioned by different classes of vehicles as proportionate to ton-mileage. After, in effect, charging against the heavier vehicles fifty-one per cent of seventy-seven per cent of the amount of £15,148,000 the exhibit treats the remaining twenty-three per cent of that sum as attributable solely to maintenance necessary as the result of damage done by the heavier vehicles. The result, namely £9,400,000 is said to be the cost of maintenance, during the year referred to, properly attributable to the heavier vehicles and it appears, after adjustments to which it is unnecessary to refer, that a rate of one-third of a penny per ton-mile imposed in respect of the heavier vehicles would not quite recoup this sum. Therefore, it is said, the charges are no more than a reasonable recompense or compensation for the use of the highways and for a contribution to the wear and tear which such heavier vehicles may be expected to make.

At a glance

Court

Decision date

Before

Source

Judgment (142 paragraphs)

Parties