Breen v Sneddon

[1961] HCA 67

High Court of Australia|1961-07-01|Before: Windeyer JJ

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Court

High Court of Australia

Decision date

1961-07-01

Before

Windeyer JJ

Source

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Judgment (42 paragraphs)

[1]

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Breen v Sneddon [1961] HCA 67

[2]

ORDER Appeal dismissed with costs subject to the order in Chambers dated 17th May 1961 as to the additional costs incurred by the appellants by reason of the appeal being heard in Melbourne.

[3]

These are two appeals heard together against two separate convictions obtained under s. 10 (1) (e) of the Road Maintenance (Contribution) Act, 1958 N.S.W.. The defendant Breen and the defendant Martin were charged separately in respect of independent vehicles under that provision. Section 10 (1) provides that any person who (e) fails to pay to the Commissioner for Motor Transport as required by the Act any charges payable in respect of any vehicle shall be guilty of an offence against the Act. In each case an information alleged that the defendant did fail to pay to the Commissioner charges payable in respect of a commercial goods vehicle (specifying it) as required by the Act, the charge being a certain sum for mileage travelled along public streets in New South Wales by such vehicle during the month of January 1959. In each case the facts were that the defendant was the owner of a motor vehicle consisting of a prime mover and trailer which in January 1959 carried goods between Sydney and Melbourne exclusively in the course of and for the purposes of inter-State trade. He did not pay the charges which under the provisions of the Act, if validly applying, would be payable in respect of so much of the inter-State journeys as took place in New South Wales. He was prosecuted before a Court of Petty Sessions for his failure to pay the charges and upon the hearing of the charge - the two cases being heard together - his counsel relied as a defence upon s. 92 of the Constitution.

[8]

Certain distinctions must be clearly maintained in dealing with the contention of the appellants. One of them of importance is really very obvious. It is the distinction between, on the one hand, ordinary questions of fact which arise between the parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law and, on the other hand, matters of fact upon which under our peculiar federal system the constitutional validity of some general law may depend. Matters of the latter description cannot and do not form issues between parties to be tried like the former questions. They simply involve information which the Court should have in order to judge properly of the validity of this or that statute or of this or that application by the Executive Government of State or Commonwealth of some power or authority it asserts. In Commonwealth Freighters Pty. Ltd. v. Sneddon [1] the following passage in what I said deals with the question: "Highly inconvenient as it may be, it is true of some legislative powers limited by definition, whether according to subject matter, to purpose or otherwise, that the validity of the exercise of the power must sometimes depend on facts, facts which somehow must be ascertained by the court responsible for deciding the validity of the law. In Griffin v. Constantine [2] , in order to decide the validity of the law there impugned some knowledge was necessary of the nature and history of methylated spirits but it was considered proper to look at books to obtain it. In Sloan v. Pollard [3] facts were shown about arrangements between this country and the United Kingdom which gave constitutional validity to an order. In Jenkins v. The Commonwealth [4] the validity of the statutory instruments was upheld on evidence as to the place of the mineral mica in electronic devices used in naval and military defence. There is no need to multiply examples. All that is necessary is to make the point that if a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity [1] ".

[14]

It may be added that in these proceedings nothing has appeared which would lead us to reconsider the decision in the case of Commonwealth Freighters Pty. Ltd. v. Sneddon [1] even if an attempt were made, by a direct attack before us, to induce us to reopen it. I am quite alive to the consideration that in that case I qualified my statement of my conclusion by a reference to "the materials before the Court". For example I said "it seems to me that on the materials before the Court the validity of the charge in its intended operation on inter-State journeys ought in point of law to be sustained" [2] . Further in enumerating the indicia of validity in its application to inter-State carriage which the legislation displays I referred to the absence of evidence and material weakening the counter-presumption against the conclusion that the charge amounted to a bare tax. But by these references it was not intended to throw it open to every tribunal of fact, be it judge be it jury or be it magistrate, to examine or try as an issue of fact the existence of any of the considerations which this Court had adopted as tests of the validity of the operation of the legislation upon inter-State carriage. It would be impossible to administer the law on such a footing. The qualification was thought desirable because the duty rests upon this Court of preserving the freedom of inter-State trade, commerce and intercourse from impairment by the imposition of a tax even when the imposition is under cover of a charge ostensibly conforming with the tests laid down in Hughes and Vale Pty. Ltd. v. State of New South Wales [No. 2] [3] ; Armstrong v. State of Victoria [No. 2] [4] and now Commonwealth Freighters Pty. Ltd. v. Sneddon [1] and Boardman v. Duddington [5] . An ostensible or outward conformity with all the tests laid down in those cases could, I think, conceal only with great difficulty a recourse in substance to a tax infringing upon any true conception of freedom. But to quote from Commonwealth Freighters Pty. Ltd. v. Sneddon [1] : "This Court bears the ultimate responsibility of preserving the freedom of inter-State trade commerce and intercourse from encroachments and impairments and it would be unwise to view without misgiving the possibility of States, under cover of the judgments of the majority of the Court in Hughes and Vale Pty. Ltd. v. State of New South Wales [No. 2] [2] and in Armstrong's Case [No. 2] [3] , levying taxes involving an impairment of that freedom as those judgments seek to define it" [4] . That, however, does not mean that a decision having been reached by this Court as to the validity in its application to inter-State carriage of a State Act, it can be ripped up every time there is a prosecution under the provisions of the Act.

[19]

The difficulty I have found in the present appeals may be due in part to the fact that the reasoning employed in the series of cases referred to has not appeared to me completely uniform. It has seemed to vary to some extent, from judge to judge and from case to case, though how far the variations have been in essential ideas or only in methods of expressing or explaining ideas may be a question. But I think that the result has been to require the recognition of a class of legislation which, though it makes an exaction from a person in respect of his use of roads in inter-State journeys, yet leaves him in unimpaired enjoyment of the freedom of inter-State travel and transportation which s. 92 of the Constitution decrees. The conception that there is a category of legislation which may bear upon inter-State trade, commerce and intercourse without diminishing its freedom has long been accepted, and its rational basis is clear although its limits have not been, perhaps because they cannot be, defined with precision. At its base lies the proposition that s. 92 creates freedom and not anarchy. It creates freedom for participation in activities of the specified descriptions within a community organized by law; and it therefore presupposes laws of the kind which may be described (if I may repeat earlier words of my own) as circumscribing an individual's latitude of conduct in the interests of fitting him into a neighbourhood - a society, membership of which entails, because of its nature, acts and forbearances on the part of each by which room is allowed for the reasonable enjoyment by each other of his own position in the same society. My dissent in Hughes and Vale Pty. Ltd. v. State of New South Wales [No. 2] [1] from the adumbration by other members of the Court of the doctrine as to road charges which has been developed in later cases went largely upon what I regarded as a crucial distinction between, on the one hand, laws thus operating as part of the framework within which s. 92 takes effect and, on the other hand, laws imposing charges for the use of roads. The opposite view has prevailed, and the result, as I see it, has been to establish the latter kind of laws as a species of the former. This necessarily means, I think, that all the careful attention which has been given in the cases on road charges to a scrutiny of the legislation to discover whether it exhibits any or all of a number of features regarded as indicia of compatibility with s. 92, has been in truth aimed, not at the question of the severity with which the charges bear upon inter-State road users as if that were the ultimate question upon which the conclusion should hang, but at the question whether the legislation imposing the charges is of a kind which s. 92 assumes may exist as part of the legal context within which the freedom is to exist. In dealing with a different species of law forming part of that context I said in Greutner v. Everard [1] that the class of laws which, though placing restrictions or other burdens upon individuals engaged in inter-State trade, commerce or intercourse, yet do not detract from the freedom of the individual's inter-State trade, commerce or intercourse itself, is distinguished not by the lightness of the burdens imposed, but by the nature of the laws that impose them. To this I adhere, and it seems to me that the Court's consideration of road charges has developed to a point at which it is possible to see that, as it is their nature that thus distinguishes the general class of laws to which I was referring in Greutner v. Everard [2] , so it is their nature that distinguishes in particular the laws which validly impose charges for the inter-State use of roads. What should now be accepted as established is, I think, that a law imposing a road charge is outside the overruling operation of s. 92 if it is in truth and in substance a law for the exaction of a recompense or compensation for wear inflicted upon roads by their use - as Fullagar J. expressed it in Commonealth Freighters Pty. Ltd. v. Sneddon [3] , a contribution towards expenditure necessitated by the activities of those who use public highways. I would respectfully accept Fullagar J.'s objection to the suggestion of an analogy with a charge for the use of a facility which a State provides without legal obligation. Presumably a State may charge what it likes for the use, even by inter-State travellers or carriers, of wharves, or of landing grounds, or of railways, or of anything else in respect of which it may, by virtue of ownership or otherwise, exclude persons at will consistently with s. 92. But as Fullagar J. said, persons travel as of right on a public highway; and it has been in consequence of the Privy Council's decision in Hughes and Vale Pty. Ltd. v. State of New South Wales [No. 1] [4] , namely the decision that s. 92 prevents a State from excluding at will inter-State users from the roads which for the time being are public highways, that a doctrine has arisen with respect to such roads which has to do with recompense or compensation and not with reward.

[24]

These are appeals from convictions before a magistrate for offences against s. 10 (1) (e) of the Road Maintenance (Contribution) Act, 1958. The offence alleged in each of the two informations was that of failing to pay to the Commissioner for Motor Transport the charges payable in respect of a commercial motor vehicle for mileage travelled along public streets in New South Wales during the month of January 1959. No question arises as to whether the terms of the sub-section were contravened but, on the hearing before the magistrate, an attempt was made by the appellants to adduce evidence of the general character described in the reasons of the Chief Justice in order to establish that the provisions of the Act could not validly apply to their vehicles engaged exclusively, as they were, in trade, commerce and intercourse among the States. This evidence, it was said, would, if admitted, have established that the ton mile rate which the Act purports to impose upon vehicles so engaged bears no relation to the wear and tear which such vehicles cause to the highways. This is so, it is said, because the charging formula takes no account of axle loading, speed, number and size of tyres, tyre pressures and a number of other factors which were said to be relevant to an enquiry whether the charges in question offend against the provisions of s. 92. The evidence was rejected but the appellants challenge this ruling and rely upon observations made in earlier cases in which the limits of legislative action in this field were discussed and explained. In Commonwealth Freighters Pty. Ltd. v. Sneddon [1] where a majority of this Court, after agreeing with the proposition that "it is right to begin with the presumption that to levy a compulsory contribution to the revenue of the State is a tax and if it is laid upon the transportation of goods from one State to another it is inconsistent with s. 92 of the Constitution " [2] , went on to say that enough appeared in the Act to raise "a counter-presumption that the charge possesses a foundation bringing it within the doctrine explained and adopted in Armstrong's Case [No. 2] [3] by a majority of the Judges and foreshadowed in the judgments of the majority in Hughes and Vale Pty. Ltd. v. State of New South Wales [No. 2] [4] " [2] . "No material", it was said, "before the Court weakens or overturns that counter-presumption and we should act on it and uphold the validity of the application to inter-State journeys of the Road Maintenance (Contribution) Act, 1958 N.S.W. in its material provisions" [5] . The same approach was employed in Boardman v. Duddington [1] concerning the provisions of The Roads (Contribution to Maintenance) Acts 1957 to 1958 Q.. In the earlier case of Armstrong v. State of Victoria [No. 2] [2] evidence was put before the Court in order to establish, if possible, that the like rate of charge which the Victorian Act imposed was reasonable and, in some measure at least, the evidence was thought by the majority of the Court to confirm the impression which a consideration of the statutory provisions alone created. No such evidence, however, was before the Court in Commonwealth Freighters Pty. Ltd. v. Sneddon [3] and in Boardman v. Duddington [1] the evidence which was adduced was not thought to be of any significance. In the latter case it was said: "It seems a natural inference that New South Wales and Queensland adopted the same rate of contribution to road maintenance because it had been upheld. The conception which in Hughes and Vale Pty. Ltd. v. State of New South Wales [No. 2] [4] the majority of the judges put forward of a road maintenance charge the imposition of which might be consistent with the freedom of the inter-State transportation of goods was certain to raise many difficulties; that was foreseen and could not be helped. But it is impossible to avoid the impression that more progress towards a satisfactory solution of the difficulties might have been made by an independent attack upon them by New South Wales and by Queensland based upon the facts and circumstances and the costs prevailing in those respective States. Nevertheless it does not follow that the legislation of Queensland is not a real attempt to impose a road maintenance charge of an amount which cannot be impugned as excessive for the purpose and is confined in all respects within the limits of the conditions which appeared to us to remove a road maintenance contribution from the category of a bare tax selecting the carriage of goods as a source of revenue to the State and so burdening commerce between the States and impairing its freedom. Apart from a separate question as to the uniformity of the charge I think the proper conclusion is that the counter presumption I have referred to should prevail" [5] .

[28]

On this aspect of the matter it should be pointed out at once that the case is entirely different from those cases where the constitutional validity of a statute depends upon the existence of a publicly and commonly recognized state of affairs. If the criterion of validity does, as I think, permit an issue of fact to be raised as to the reasonableness of the charge, it is one which can be resolved only by the consideration of evidence tendered and considered in the ordinary processes of litigation. But it would be most inappropriate if such an issue should be constantly open for decision in litigation between private individuals. Nor would it, in my view, be appropriate to entertain such an issue in summary proceedings before magistrates at the instance of a police officer or of a transport inspector. What must be borne firmly in mind is the fact that the problem is one concerning the validity of a statute and no determination of the relevant issue of fact in any such proceedings could be regarded as conclusive against the State, as a vitally interested party, upon any such issue. In the result, therefore, the decision in any such proceedings could not operate, finally, to conclude the question of validity. Nor, would it be practicable to treat any such decision merely as determining the question of validity as between the immediate parties to such proceedings. For, if it could be so regarded, the issue might be raised day after day and a different conclusion reached accordingly as the evidence or the credibility of the witnesses varied or, indeed, according to the zeal of, or the information at the disposal of, the parties. In my opinion, any issue of fact relevant to the validity of the charging provisions of the Act ought to be determined only in proceedings instituted for that purpose and to which the State is a party. Accordingly, I take the view that the issue of fact which the appellants desired to litigate in the proceedings before the magistrate was not open. That being so I am of the opinion that the appeals should be dismissed.

[31]

In my opinion the evidence was properly rejected. In Australian Communist Party v. The Commonwealth [3] , Kitto J. said: "Although it is only in litigation between parties that the Court may decide whether Commonwealth legislation is valid, it is upon the validity of the legislation in relation to all persons that the Court has to pronounce. The question is whether the legislation forms part of the law of the Commonwealth. Since it is impossible to affirm the validity of a measure upon a particular basis of fact unless that basis of fact can be seen to be common to all persons, it cannot be material, for the purpose of considering validity, to decide an issue of fact which is of such a nature as to admit of different findings in different cases" [1] . These observations seem to me to apply with compulsive force in the case of proceedings before a magistrate bound by a decision of this Court to hold that the Act which it is sought to impugn is valid. The magistrate could not upon any view of the facts hold the Act invalid or inapplicable to vehicles being used in inter-State trade nor does it seem to me that any so-called findings of fact by a magistrate based upon his view of such evidence as the parties or one of them might adduce relating to the effect of the Act upon inter-State operations could afford any foundation for this Court reviewing its earlier decisions. These decisions determined the character of the legislation in question here rather than its economic effect upon those using commercial vehicles to carry goods inter-State, and although background facts of a general character are necessarily material for reaching such decisions, facts of that character are always for this Court's ultimate determination and once so decided are not open for review in other courts. The earlier decisions of this Court upholding the validity of imposing road charges upon carriers, including inter-State carriers - like the decisions in Greutner v. Everard [2] and Sloman v. Howarth [2] upholding the imposition of limits upon the height of vehicle and load and the length of the vehicle used upon roads - depend ultimately upon the recognition that the legislation has a character which makes it consistent with s. 92 notwithstanding that for the good of all it imposes obligations or restrictions upon those who remain free to trade.