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[1955] HCA 28
plaintiff. Plaintiffs' demurrer to the defence allowed. Judgment in the suit entered for the plaintiffs with costs. Declare that s. 3 (3) and the Third Schedule of the State Transport (Co-ordination)...
The High Court held that New South Wales could not impose a licensing system or charges on trucks carrying goods between States where officials had wide discretion to refuse licences on vague grounds or attach restrictive conditions, or where the charges were fixed by reference to broad state road policy rather than fair payment for actual road wear. The court also ruled that a weight-based motor vehicle tax, payable before a vehicle could legally use the roads, could not apply to vehicles used only for inter-State journeys. These laws still placed an unconstitutional burden on the free flow of trade between States protected by s. 92 of the Constitution. The plaintiffs' legal objection to the new laws was upheld on demurrer.
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The plaintiffs, Hughes & Vale Pty Ltd (a carrier company) and an individual owner-driver, Keith Flynn, operated public motor vehicles exclusively on inter-State journeys carrying goods between Sydney and the capitals of Queensland, Victoria and South Australia. They did not engage in any intra-State carriage within New South Wales. Their operations were directly affected by the State Transport (Co-ordination) Act 1931-1952 (as amended by Act No. 48 of 1954). That amending Act was passed shortly after the Privy Council's decision in ((1955) A.C. 241; (1954) 93 C.L.R. 1) which had declared that the earlier licensing provisions of the principal Act were inapplicable to inter-State operations because they contravened s. 92 of the Constitution.
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The 1954 Amendment introduced a new text of the Act (set out in the Third Schedule) that applied specifically "to or in respect of any person operating or intending to operate a public motor vehicle in the course of and for the purposes of inter-State trade". The pivotal provision remained s. 12(1), which made it an offence to operate a public motor vehicle in inter-State trade without a licence issued by the Commissioner for Motor Transport. The Commissioner was given power under s. 17 to refuse a licence on stated grounds (including that the applicant was not a "fit and proper person", that the vehicle was unfit, or that its operation would create or intensify "unreasonable" damage to roads, danger or interference with traffic) and to attach conditions of a "regulatory character" or conditions necessary for safety, traffic regulation and road preservation. In addition, s. 18(4)-(6) required every licence to be subject to a condition that the holder pay, before each journey, a "reasonable charge" for the use of public streets traversed and an appropriate part of the cost of administering the Act. The rate or scale of that charge was to be fixed by the Commissioner after receiving a recommendation from an advisory committee required to have regard to "all relevant matters", including state-wide road construction and maintenance costs, depreciation, wear caused by different vehicles, moneys available from other sources, and expenditure from the Country Main Roads Fund.
The plaintiffs also challenged the Motor Vehicles Taxation Management Act 1949-1951 and the Motor Vehicles (Taxation) Act 1951. Those Acts imposed a flat tax (scaled by unladen weight, with additions for non-pneumatic tyres or diesel engines) payable on application for registration or renewal of registration under the Motor Traffic Acts. Failure to pay rendered the owner liable to penalty and the vehicle liable to seizure. The tax was not related to the distance travelled or the particular roads used on inter-State journeys.
The suit sought declarations that the 1954 amendments (or material parts of them) and the taxation Acts were invalid as inconsistent with s. 92. The defendants filed a defence that admitted the plaintiffs' factual allegations of exclusive inter-State operation but pleaded historical matters concerning the development of New South Wales roads since Federation. The plaintiffs demurred to that defence. The High Court (Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ.) heard the demurrer and, by majority reasoning expressed in a joint judgment of Dixon C.J., McTiernan and Webb JJ. (with separate concurring reasons from the other members), upheld the demurrer, entered judgment for the plaintiffs, and made the declarations sought. The court held that the licensing and charge provisions still operated as a real burden on the freedom of inter-State trade and that the motor vehicles tax could not validly apply to vehicles used exclusively for inter-State purposes.
The court's reasoning begins from the proposition, reinforced by the Privy Council's decision in Hughes & Vale [No 1], that s. 92 guarantees absolute freedom from any legislative or executive measure that prohibits, restricts, impedes or burdens the very act of engaging in inter-State trade, commerce or intercourse. The joint judgment emphasises that the cardinal provision (s. 12(1)) "goes to the very essence of the inter-State transaction and forbids it, that is unless licensed". For such a conditional prohibition to be compatible with s. 92, the conditions must be such that the apparent restriction "turns out to be nothing but a means of regulating or directing the conduct of the trade without impairing the freedom to carry it on".
The licensing scheme failed this test at multiple levels. First, the discretion to refuse under s. 17(4) was expressed in "vague and elusive terms" ("fit and proper person", "unreasonable damage", "unreasonable interference"). These grounds gave the Commissioner "almost complete command of the fate of any application" and were "rarely... practically examinable in a court of law". Even if mandamus were sought, an applicant would seldom be able to show that the discretion had been exercised on a ground outside the "difficult of ascertainment" limits of s. 17(4). Second, the power to attach conditions under s. 17(2) and (4A) (including limiting the class of goods, the days or times of carriage, or the quantity or weight) could be used in a manner that prevented the licensee from employing the vehicle in the very inter-State transaction contemplated. The bracketed words "being terms and conditions of a regulatory character" did not cure the defect; they had "no more, and perhaps even less, effect than if 'subject to s. 92 of the Constitution' had been written". The result was that the inter-State carrier remained "very little, if at all, better off" than under the legislation struck down by the Privy Council.
The charge provisions in s. 18(4)-(6) were likewise invalid. Although described as a "reasonable charge for the use by the vehicle of public streets", the substance of the scheme was that the rate or scale was fixed by the Commissioner after an advisory committee had regard to "all relevant matters", including the cost of state-wide road construction, depreciation, the necessity for widening or reconstruction, moneys available from other sources, and proposed expenditure from the Country Main Roads Fund. The proceeds (after administration costs) went into that Fund and could be applied to broad road purposes not necessarily linked to the particular use made by any individual licensee. The maximum charge was tied to the intra-State rates fixed under the unamended Act, which had historically included railway co-ordination objectives. The joint judgment concludes that the provisions armed the authority with power to place upon inter-State journeys "an imposition or impositions unlimited in amount and fixed upon considerations restricted only by a sense of relevancy in the agency". That was "prima facie not... consistent with s. 92".
The motor vehicles tax legislation operated as a condition of registration without which the vehicle could not lawfully be driven on any public street. The tax was a flat rate scaled by weight (with supplements for certain tyres or engines) and bore "no definite relationship to the use of the roads". It was therefore a direct burden on the movement of vehicles in inter-State commerce. Because the plaintiffs pleaded exclusive inter-State use, s. 92 protected them from the imposition. The legislation was capable of distributive operation, so the invalidity was confined to that class of vehicles.
Throughout, the court insisted that the question is one of practical operation, not verbal formulae. The word "regulation" is convenient but must not be used to validate a scheme that in truth leaves the trade subject to administrative veto or discretionary burden. The American cases on highway charges were examined for guidance but were ultimately distinguished because the United States commerce clause rests on a different constitutional division of power. The basal assumption of s. 92 is that the ordinary means of inter-State carriage (including the public highways) continue to be available according to the ordinary law of the State, without a charge that operates as a tax on the trade itself.
Before the Privy Council's decision in Hughes & Vale [No 1], a long line of High Court authority (the "Transport Cases" beginning with R. v. Vizzard; Ex parte Hill (1933) 50 C.L.R. 30 and culminating in McCarter v. Brodie (1950) 80 C.L.R. 432) had upheld State licensing and charging schemes on the basis that they were regulatory of the use of State-provided road facilities and did not directly burden the trade itself. The Privy Council overruled that line, holding that the discretion to grant or refuse licences and the power to impose charges operated as a real impediment to the personal right to engage in inter-State transport. The 1954 Amendment was New South Wales' legislative response. It attempted to confine the old intra-State regime, to soften the inter-State licensing criteria, to bracket the condition-making power with the words "of a regulatory character", and to describe the journey charge as "reasonable" and to channel the proceeds to road funds.
After the present decision, it is clear that a State cannot maintain a discretionary licensing system that leaves the fate of inter-State operators in the hands of an administrative officer acting on indefinite criteria. Nor can a charge be sustained if its fixing takes account of state-wide policy, other revenue sources or railway co-ordination objectives. The motor vehicles tax, previously upheld in Willard v. Rawson (1933) 48 C.L.R. 316 on the basis that it was a fee on ownership or registration rather than on movement, can no longer apply to vehicles used exclusively for inter-State journeys; the tax operates directly on the use necessary for that trade. The law now requires that any charge be genuinely compensatory, related to actual use and wear, non-discriminatory, and free of elements that convert it into a tax on the privilege of conducting inter-State commerce. The decision therefore narrows the permissible field of State control over inter-State road transport to true regulation of incidents (safety, equipment, traffic flow) that do not impair the freedom to effect the transaction across the border.
The joint judgment contains several passages that repay close attention. One central statement appears in the discussion of the amended s. 12 and s. 17:
"The result of the amending legislation contained in Act No. 48 of 1954 is to forbid the use of motor vehicles for the carriage of goods in the course of trade between New South Wales and another State except by the licence of an administrative agency of New South Wales whose only duty to allow it is in practical effect unenforceable and in any case does not arise unless the agency does not regard any of a number of very wide indefinite and sometimes intangible objections as existing and if and when it arises it is not a duty to licence the use of the vehicle as asked but only subject to any conditions (falling within certain very wide descriptions) which the agency may choose to impose, conditions which may or may not be consistent with the inter-State trade or transaction in view."
In plain English: the new law still says "you cannot carry goods across the border unless we give you a piece of paper". The officials can refuse for reasons that are so vague no court can effectively review them, and even if they say yes they can attach conditions that stop you doing the very job you wanted to do. That is not freedom.
On the meaning of regulation the court observed:
"It is, for example, self-evident that the existence of a law of contract, property, tort, status, capacity, and the like forms an anterior assumption made by s. 92... The point at which such laws must stop is when they involve a prohibition, restriction, impediment or burden which prevents, obstructs or prejudices the dealing across the border... The burden or obstruction must be real: it will not be enough to discover some theoretical or speculative transgression over a metaphysical boundary..."
Plain-English translation: s. 92 does not create a law-free zone. Ordinary rules about contracts or driving on the left still apply. But the moment a law stops you actually crossing the border to do business, or makes that crossing substantially harder or more expensive in a way that targets the cross-border deal itself, s. 92 is engaged. Vague administrative discretion crosses that line.
Concerning the charge provisions the court said:
"What the provisions of sub-ss. (4), (5), (5B), (5E), (5F) and (6) do in substance is to arm an administrative agency with an authority to place upon inter-State journeys for the transportation of goods an imposition or impositions unlimited in amount and fixed upon considerations restricted only by a sense of relevancy in the agency... To confer such a power seems prima facie not to be consistent with s. 92."
Plain English: the Act lets officials set a charge by looking at the whole State road budget, what other taxes bring in, and what they want to spend on new roads. That is not a fair price for the bit of road you actually drive on; it is a tax on your business. s. 92 does not allow that.
On the motor vehicles tax the joint judgment concluded:
"The incidence of the tax, though in terms it is levied on 'motor vehicles', is upon their use. It is a condition of registration without which they cannot be used on roads of the State... The tax operates immediately upon the use of a motor vehicle for the carriage of goods in inter-State commerce and imposes a substantial burden. Section 92 therefore protects a person whose use of the vehicle is in inter-State commerce from the imposition of the tax."
Plain English: you cannot drive the truck on any New South Wales road without paying the tax. If your only driving is the inter-State trip, the tax is a direct hit on that trip. The Constitution stops the State from making you pay it.
The decision is triggered whenever a State seeks to control inter-State road transport by means of a licensing system that (a) prohibits the activity unless a licence is obtained and (b) gives an official broad discretion to refuse on indefinite criteria or to attach conditions that can prevent the intended inter-State transaction. It is equally engaged where a charge or tax is imposed directly on the journey or as a condition of registration and the statutory mechanism permits the amount to be fixed by reference to state-wide road policy, other revenue sources, or considerations not strictly limited to fair recompense for the actual use and wear caused by the particular vehicle. The precedent applies to both common carriers and traders carrying their own goods, to single journeys and repeated operations, and to vehicles registered in the State or in another State. It does not apply to genuine safety, equipment or traffic-flow rules that are uniform, non-discretionary in their core requirements, and do not target the inter-State character of the movement. A charge that is plainly a mileage or ton-mileage fee, fixed in advance, devoted exclusively to road maintenance, non-discriminatory as between intra- and inter-State traffic, and involving no substantial interference with the journey itself, may survive. But any scheme that leaves the operator's ability to trade at the mercy of an official's opinion on "reasonableness", "fitness" or "all relevant matters" will engage s. 92.
Most practitioners do not realise that the decision draws a sharp line between charges that reimburse the State for a specific physical facility actually used and taxes that simply raise general revenue for road programs. The former may be constitutional if carefully structured; the latter are not, however labelled. The "Gotcha" is that a statute can recite that the charge is "reasonable" and direct proceeds to a road fund yet still fail because the criteria for fixing the rate include extraneous policy considerations.
The judgment itself treats earlier authorities in a consistent manner. It follows the Privy Council's decision in Hughes & Vale [No 1] as settling that the discretion to licence and the power to charge under the pre-1954 legislation were incompatible with s. 92. It applies the Banking Case (The Commonwealth v Bank of New South Wales (1950) A.C. 235) for the proposition that s. 92 protects the personal right to engage in inter-State trade from direct legislative or executive interference. It distinguishes Willard v Rawson on the basis that the motor vehicles tax there upheld could no longer be characterised as merely incidental to ownership once it was recognised as operating directly on the use necessary for inter-State movement. The Transport Cases that had upheld broad regulatory schemes are treated as having rested on a view of s. 92 that the Privy Council had rejected; the present decision therefore confirms that those cases cannot stand in the inter-State field. The joint judgment cites Grannall v Marrickville Margarine Pty Ltd (1955) 93 C.L.R. 55 for the caution that one cannot antecedently deny that any legislative step might form part of a device to restrict inter-State commerce. It also draws on Australian Communist Party v Commonwealth (1951) 83 C.L.R. 1 for the proposition that constitutional validity cannot turn on the opinion of an administrative officer as to fact or law; the Court must itself be satisfied of the facts and the legal basis that are said to bring the measure within power.
Because the decision is grounded in the application of these authorities to the specific statutory text before the Court, later courts are bound to examine any new licensing or charging regime for the same vices: breadth of discretion, vagueness of criteria, and the presence of elements that convert a charge into a tax on the trade. The judgment leaves no room for a return to the pre-Privy Council position that State responsibility for road facilities justifies discretionary control.
The judgment expressly leaves some questions unresolved. It notes that the distinction between regulation and prohibition, though clear in conception, "may often be difficult to apply in the great variety of practical situations that arise in our complicated economic and governmental system". Exactly how narrowly a licensing criterion must be drawn before it ceases to be "regulatory" is not spelled out; the Court contents itself with saying that the present criteria were too wide. The possibility, adverted to by the Privy Council in Hughes & Vale [No 1], that in special circumstances of public safety it might be necessary to limit the number of vehicles on certain routes is acknowledged but not explored; the Court merely observes that any such power would need to be defined with particularity and would not justify the general discretionary scheme before it.
On the charge side, the Court accepts that a State may exact a compensatory payment for the use of highways but does not prescribe a definitive formula. It suggests that a mileage or ton-mileage charge, with proceeds devoted to relevant road maintenance and without discrimination against inter-State traffic, would "naturally" be seen as compensatory. Yet it leaves open whether capital cost of new highways can be included, whether average rather than marginal cost is permissible, and how precisely the "relevant highways" must be identified in a large State. The relationship between such a charge and other State imposts (for example, petrol tax or general revenue contributions) that also fund roads is not fully worked out; the Court merely notes that the incidence of all taxation may need to be examined to ensure that inter-State commerce is not placed under a real cumulative burden.
The distributive operation of the taxation Acts is accepted but the precise limits of that operation (for example, vehicles that undertake both inter-State and intra-State legs on the one journey) are not decided. Finally, the Court does not foreclose the possibility that, in future factual circumstances not before it, a measure that appears inconsistent with freedom might in particular conditions involve "no real invasion of freedom". Any legislature tempted to test those boundaries will, however, find that the present decision places the onus firmly on the State to demonstrate that its scheme leaves the inter-State trader as free, in a practical sense, as if the legislation had never been enacted. Most practitioners do not realise how narrow the surviving field of State discretion has become; the "Gotcha" is that a statute can be drafted to recite every constitutional formula yet still fail because its practical operation, not its language, determines validity under s. 92.
For the reasons I have endeavoured to state, I feel obliged to dissent from the view which appeals to a majority of the Court in regard to charges for the use of roads.
In this suit the plaintiffs, who are the owners of public motor vehicles which they operate exclusively for the purpose of carrying goods between capital cities in New South Wales and certain of the other States of the Commonwealth, seek declarations that the State Transport (Co-ordination) Act 1931-1954 is, or alternatively, that certain of its provisions are, beyond the powers of the Parliament of New South Wales. Additionally, the plaintiffs seek declarations that the Motor Vehicles (Taxation) Act 1951, and the Motor Vehicles Taxation Management Act 1949-1951, are invalid.
The suit is the immediate aftermath of the State Transport (Co-ordination) Amendment Act 1954, which was enacted to deal with the situation which arose after the declaration by the Judicial Committee of the Privy Council that those provisions of the State Transport (Co-ordination) Act 1931-1951 which required application to be made for a licence, and all provisions consequential thereon, were inapplicable to the appellant whilst operating its vehicles in the course of and for the purpose of inter-State trade, or to the vehicles while so operated. The method of amendment which was adopted by the New South Wales legislature was to make special provision for the case of persons and vehicles engaged in trade, commerce and intercourse among the States and to allow the existing legislation to continue to operate according to its tenor with respect to persons and public motor vehicles engaged in intra-State trade. Extensive references to the statutory provisions as they stood immediately before the amending Act are unnecessary for these are to be found in the report in this Court of Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [1] and also in the report of the proceedings before the Judicial Committee [2] . It is not out of place, however, to commence consideration of this case with the following observations concerning the substance of the legislation as it stood when the last-mentioned decision was given and, indeed, as it still operates with respect to persons and vehicles engaged in intra-State trade.
(1) The State Transport (Co-ordination) Act 1931-1951 applied without distinction to persons engaged in the carriage of passengers or goods for hire by means of public motor vehicles as defined by that Act.
(2) With certain immaterial exceptions it was unlawful to operate a public motor vehicle for either of these purposes unless it was licensed under the Act.
(3) The Act provided that a licence for a public motor vehicle might authorize the vehicle for which it was granted to operate only upon specified routes or roads or within specified areas.
(4) Every licence issued under the Act was to be subject to the performance and observance by the licensee of all conditions specified in the licence.
(5) The licensing authority was empowered, in any licence for a public motor vehicle authorizing the holder to carry goods, to impose a condition that the licensee should pay such sums as should be ascertained as the licensing authority should determine. It was within the power of the licensing authority to determine that the sum of sums so to be paid might be differently ascertained in respect of different licences and might be ascertained on the basis of mileage travelled or in any other method or according to any other basis or system that might be prescribed by regulations made under the Act, provided however that the sum or sums should not exceed an amount calculated at the rate of threepence per ton or part thereof of the aggregate of the weight of the vehicle unladen and of the weight of loading the vehicle was capable of carrying for each mile or part thereof travelled by the vehicle.
(6) Provision was made for the establishment of a fund to be called the State Transport (Co-ordination) Fund into which all amounts payable to the licensing authority pursuant to the conditions of any licence should be paid. The licensing authority, with the approval of the Colonial Treasurer, was authorized to make from time to time any payments out of the fund to the Country Main Roads Fund, established under the Main Roads Act 1924-1950, the Government Railways Fund, established under the Government Railways Act 1912-1951, or to the general fund of any transport trust.
(7) The statute invested the licensing authority with the power, at its discretion, to grant or refuse any application for a licence.
As appears from these brief observations the licensing authority was invested with a wide and uncontrolled discretion. Applications for licences, whether in relation to the intra-State or inter-State carriage of goods, might have been rejected at the discretion of the licensing authority. Further, the power to determine what, if any, charges should be paid by a successful applicant was of such a nature as to permit of different charges being made to different licensees whether the goods were of the same character or not or to be carried over the same route or not. The admitted facts in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [1] left little room for speculation as to the purpose for which these provisions had been designed and, what is more important, illustrated quite clearly the essential object of the legislation. In that case it was common ground that the discretionary licensing system and the wide power of determining what, if any, fees or charges should be paid by successful applicants for licences had been used directly to prevent or hinder competition with the New South Wales Government Railways in an attempt to "co-ordinate" or "rationalize" different forms of transport within the State. Licences known as "non-competitive" licences were issued which authorized the operation of specified public motor vehicles on or in routes, roads or areas within the State on journeys none of which, for a distance exceeding fifty miles, was competitive with the railways or tramways. In respect of any journey which was wholly or partly competitive with the railways or tramways the licensee was subjected to a condition that he should pay to the licensing authority for the full competitive distance threepence per ton, or part thereof, of the aggregate of the weight of the vehicle unladen and of the weight of loading the vehicle was capable of carrying for each and every mile or part thereof travelled by the specified vehicle along a public street. At a later stage some qualification of the latter condition was made and licences and permits were issued providing for differential rates of charges for goods of different descriptions. With respect to the carriage of certain classes of goods, permits were issued exempting the holder from payment of any charges under the Act. With respect to other classes road permits were issued on payment of charges as prescribed under the Act and, with respect to others, permits were declined "at times that rail trucks and other services were reasonably available". These, among other circumstances, induced the Judicial Committee to observe, in the statement of the facts of the case, that in granting licences to the appellant under the provisions of the Act the authorities had imposed certain mileage charges and that "it is unnecessary to describe these charges in detail, but it is not in doubt that the object of these charges was to protect the railways in New South Wales from competition, as part of a system for "co-ordinating transport" " [1] .
The decision of their Lordships is clear authority for the proposition that the licensing system which had been erected by the State Transport (Co-ordination) Act 1931-1951, invaded the "freedom" conferred by s. 92 of the Commonwealth Constitution on those persons engaged in the carriage of goods on journeys extending from a point in one State to a point in another and that the Act could not validly operate with respect to such persons or to vehicles so employed. Moreover, it is apparent that the right to impose charges upon persons so engaged in the manner indicated presented a further obstacle to the maintenance of the Act as a valid piece of legislation. Accordingly the purpose of the 1954 amending Act was to deal with the significant gaps produced by the declaration that the provisions of the Act requiring application to be made for a licence, and all provisions consequential thereon, were inapplicable to the appellant while operating its vehicles in the course of and for the purpose of inter-State trade, or to the vehicles while so operated.
The State Transport (Co-ordination) Amendment Act 1954 attempted to deal with each of these problems. By s. 4 (2) (a) it was declared that for the purposes of the application of the Act to or in respect of any person operating or intending to operate a public motor vehicle in the course and for the purposes of inter-State trade, and to or in respect of a public motor vehicle so operated, the provisions of the Act should be deemed to be amended in the manner set out in the third schedule to the Act. Thereafter a third schedule, containing a number of amendments was introduced. The leading provisions of these amendments relate to the licensing of vehicles intended for "operation" in the inter-State carriage of goods, to the determination and recovery from licensees of charges or fees in respect of the operation of such vehicles and to the appropriation of the revenue resulting from the imposition and collection of such charges. The terms of the relevant provisions of the Act in its amended form are of such importance in the case that I have set them out hereunder:
(3) In dealing with an application for a license the Commissioner for Motor Transport shall have regard to - (a) the suitability of the route or road on which a service may be provided under the license; (b) the condition and suitability of the roads to be traversed with regard to their capacity to carry proposed public vehicular traffic - (i) without unreasonable damage to such roads; or (ii) without creating or intensifying conditions endangering the safety of persons or vehicles using such roads; or (iii) without creating or intensifying conditions which interfere with the reasonable use of such roads by other traffic; (c) the character, suitability and fitness of the applicant to hold the license applied for; (d) the construction and equipment of the vehicle and its fitness and suitability for a license: Provided that a registration of the motor vehicle under any other Act of the State may be accepted as sufficient evidence of fitness and suitability of the vehicle.
(4) The Commissioner for Motor Transport may refuse the application if satisfied that - (a) the applicant is not a fit and proper person to hold the license; or (b) the vehicle is not properly constructed or adequately equipped or is otherwise unfit or unsuitable for the license; or (c) the operation of the vehicle, if the license were granted, would create or intensify conditions giving rise to - (i) unreasonable damage to the roads; or (ii) danger to persons or vehicles using the roads; or (iii) unreasonable interference with other traffic on the roads. (4a) Except as provided in subsection four of this section the Commissioner for Motor Transport shall grant the application.
Before making any determination of the rate or scale of rates of charge the Commissioner for Motor Transport shall take into account the recommendation of the Advisory Committee referred to in subsection (5C) of this section and the rate or scale of rates of charge so determined shall not exceed the respective rate or scale of rates of charge recommended by the Advisory Committee. (5c) There shall be an Advisory Committee consisting of the Commissioner for Motor Transport, the Commissioner for Main Roads, and the Under Secretary, the Treasury.
Where a member is unable to attend any meeting of the Advisory Committee he may appoint an officer of his Department to attend in his place, and the officer so appointed shall have all the powers and authorities of a member.
(5d) The Advisory Committee shall before making a recommendation give public notice of its intention so to do and shall fix a date before which any persons interested, including representative associations of operators of public motor vehicles, may make representations in writing to the Advisory Committee. The Advisory Committee shall not be bounded by legal forms and procedures and may inform itself in such manner as it thinks fit but before making a recommendation it shall consider all written representations which may be made to it as aforesaid. (5e) The Advisory Committee in making its recommendation and the Commissioner for Motor Transport in making his determination of the rate or scale of rates of charge shall have regard to all relevant matters including the cost of construction and maintenance of roads, the depreciation and obsolescence of roads, the necessity or desirability for the widening or reconstruction of roads, the wear and tear caused by vehicles of different weights, types, sizes and speeds, the moneys available for the purpose of construction, maintenance, widening and reconstruction of roads from sources other than charges imposed pursuant to subsection four of this section, and the amount expended or proposed to be expended from the Country Main Roads Fund established under the Main Roads Act 1924-1954. (5f) The rate or scale of rates of charge when determined by the Commissioner for Motor Transport shall be notified in the Gazette.
The rate or scale of rates of charge so notified shall be adopted as the basis for calculating amounts under subsection four of this section until varied by a subsequent notification.
The prescribed amount shall be an amount equivalent to that which would have been payable in respect of motor vehicles engaged in intra-State trade had the rate or scale of rates of charge determined in respect of motor vehicles engaged in inter-State trade been applicable to motor vehicles engaged in intra-State trade.
It is perhaps convenient at this stage to remark that it is an offence for a person to "operate" a public motor vehicle in the course and for the purposes of inter-State trade unless the vehicle is licensed under the Act and unless such person is the holder of a licence. "Operate" is defined to mean "carry or offer to carry passengers or goods for hire or for any consideration or in the course of any trade or business whatsoever".
It will be observed from a perusal of the new legislation that its terms, in form at least, purport to confine the discretion of the licensing authority within specified limits. Under the Act as amended the commissioner may refuse an application for a licence only if he is satisfied of some one or more of the matters specified in sub-s. (4) of s. 17. But by virtue of sub-s. (1) of that section every licence under the Act is subject to the performance and observance by the licensee of the conditions of his licence. These conditions may be such as are determined by the commissioner and may, inter alia, limit the use of the vehicle to the carriage of passengers only, or goods only, or to the carriage of goods of a specified class or description only, or may relate to "the circumstances in which and the days and times on which" goods and passengers may be conveyed. Again, every licence for a public motor vehicle issued under the Act is subject to a condition that the holder shall in respect of each journey pay to the commissioner "a reasonable charge" for the use by the vehicle of public streets over which it travels on such journey and for an appropriate part of the cost of administration of the Act (s. 18 (4)). The expression "reasonable charge", in this context, raises difficulties of its own and these are by no means resolved by a consideration of the succeeding sub-sections which provide the method whereby a rate or scale of charges is to be fixed. In particular it should be observed that the rate or scale of charges is ultimately to be determined by the commissioner though they are not to exceed the respective "rate or scale of rates of charge" recommended by an advisory committee consisting of the commissioner, the Commissioner for Main Roads and the Under-Secretary of the Treasury. Nor in the case of any particular licensee is any charge actually made to exceed the charge payable "in respect of public motor vehicles engaged in intra-State trade over the same route and under the same circumstances". No charge at all is payable by any such licensee when public motor vehicles of the same description or weight engaged in intra-State trade and passing over the same route and under the same circumstances are not subject to charges under the Act in its unamended form. No doubt the latter provisions were introduced to avoid any suggestion that the effect of the amending Act was to subject inter-State trade to any burden over and above that imposed upon intra-State traffic, but the immediate result is that if the "reasonable charge" determined by the commissioner should equal or exceed the maximum charges imposed in relation to intra-State traffic, inter-State traffic will find itself, with respect to charges, in precisely the same position as if the old Act applied to it. Licensees would incur the same charges when competing with the railways - and these might vary in amount according to the class or description of goods carried - and would be free of them when engaged in "non-competitive" journeys. This circumstance adds greatly to the initial difficulty in understanding the use of the expression "reasonable charge" in this context.
Consideration of sub-s. (5E) of s. 18, which specifies particular matters to which, in addition to "all relevant matters", the advisory committee is to have regard in making its recommendation is of no assistance to the defendants' case. Indeed, whilst the sub-section specifies some matters which may possibly be thought to be relevant to a determination of what may be called a reasonable charge for the use of public roads, an examination of its terms as a whole is sufficient to dispose of the notion that every or, indeed, any recommended rate or scale of rates of charges would necessarily conform to any concept of a reasonable charge for such a user. A great deal of criticism concerning the matters to be taken into consideration and the generality with which they are expressed might be advanced, but it is sufficient perhaps to point to the fact that one of the specified factors is "the moneys available for the purpose of construction, maintenance, widening and reconstruction of roads from sources other than charges imposed pursuant to sub-section (4) of this section, and the amount expended or proposed to be expended from the Country Main Roads Fund established under the Main Roads Act 1924-1954 ". What will be available for expenditure from that fund will, in some measure at least, depend upon the charges imposed upon intra-State traffic under s. 18 of the Act in its unamended form and upon the extent to which those charges, when received, are or will be, in the discretion of the commissioner, paid to that fund rather than to any of the other funds or bodies to which, pursuant to that section, payments may be made. A result of taking into consideration the factor in question may well be to burden inter-State traffic, or some part only of it, with a proportion of costs to which some intra-State users and, indeed, all road users not engaged in the carriage of passengers or goods, make no contribution at all pursuant to the State Transport (Co-ordination) Act. In these circumstances I feel that adherence to the directions contained in sub-s. (5E) cannot fail to produce anything but a recommendation of an "unreasonable" scale of charges, for, although it may, perhaps, be said that it is possible to fix a reasonable rate for A and yet charge B less and C nothing at all, how can the rate fixed for A be regarded as a "reasonable" charge for the use of the roads when one of the factors taken into consideration in fixing that rate is the amount available for the purposes of road construction and maintenance, and B, because he is carrying goods of a class or description which the railways do not particularly wish to carry, makes but a small contribution for that purpose, and C, because he is not in competition with the railways at all makes no contribution, whilst charges paid by other operators in intra-State trade may have been substantially devoted to other purposes? The distortion which such a factor must produce if it is employed to assist in determining what is a "reasonable" charge for the use by any vehicle of the public streets over which it travels on any particular journey is further emphasized when it is remembered that vehicles engaged in inter-State transport use but a comparatively small proportion of the thousands of miles of public roads in the State and the section requires the charge to be assessed having regard to the funds available for the construction and maintenance of roads generally. It is, I think, unnecessary to elaborate on the other objectionable features of the sub-section, but I cannot fail to observe that the direction to the committee to have regard "to all relevant matters" must itself present a major difficulty in the way of the defendants. This particular direction, in effect, leaves the committee free to form their own opinion as to what are "relevant matters" and entirely precludes this Court from examining the ambit of the discretion which is given to the committee in recommending such charges.
The foregoing observations are sufficient to show that even if the contention that a State may make "reasonable charges" for the use of its roads by vehicles engaged in trade commerce and intercourse among the States be accepted, it would not sustain the provisions of the Act under attack. But in view of the fact that there is also a challenge to the Motor Vehicles (Taxation) Act 1951 and the Motor Vehicles Taxation Management Act 1949-1951 and also to the somewhat different transport legislation of other States, it is desirable that the broad contention should be further examined before proceeding to a consideration of the effect of the decision, previously referred to, of the Judicial Committee. I should observe, however, that this somewhat lengthy discussion on this point tends to obscure the other objections raised in support of the contention that the State Transport (Co-ordination) Act 1931-1954 is invalid and to these a further reference will be made.
The contention that such charges may be imposed by law as a condition of the use of public roads by vehicles engaged in inter-State trade and commerce, primarily, treats the public roads of the State as State-owned facilities which may be made available or withheld at pleasure and then proceeds to assert that, in these circumstances, the levying of a "reasonable charge" as a condition precedent to their use is quite consistent with the provisions of s. 92. There is, in my view, considerable confusion in this contention. If the public roads of the State should be regarded, exclusively, as State-owned and State-provided facilities which may be made available or withheld at will then it would, I should think, be within the competence of the State to make charges for their use and it might matter little whether the charges made for their use were reasonable or unreasonable. But such a conception in relation to the use of public roads by inter-State transport appears to me to be fundamentally opposed to the stipulation that "trade commerce and intercourse among the States, whether by way of internal carriage or ocean navigation, shall be absolutely free". The plain fact is that the public roads of the State are not facilities the use of which may be withheld at will - or except upon payment of a charge to be assessed at the discretion of a licensing authority - without impairing the freedom of inter-State trade of the character under consideration. If this be so then what virtue is achieved by limiting the charges which are sought to be levied to those which are said to be "reasonable"? By whatever name the charge is designated it remains in essence a tax payable for the use of the roads and, by the legislation in question, it is imposed as a condition precedent to the use of the roads by vehicles engaged in inter-State trade and commerce. To succeed in establishing that the direct imposition of such a charge on inter-State trade does not impair the freedom guaranteed by s. 92 it would be necessary for the defendants to maintain successfully that, consistently with that freedom, inter-State trade may be directly subjected to imposts and taxes as long as they are "reasonable". Such a proposition is, of course, untenable. In passing I should observe that even if this were not so an examination of the terms of s. 18 makes it abundantly clear that the word "reasonable" appearing in sub-s. (4) thereof is nothing more or less than an ineffective tag. The charges which a licensee will become bound to pay will be those determined from time to time by the commissioner after consideration of the recommendation of the advisory committee. This is, I think, the obvious effect of the statutory provisions in spite of the contention advanced by the defendants that the question whether any charge so determined is unreasonable may always be litigated by a dissatisfied licensee.
The contention that the State may lawfully make such charges was, however, put in what, apparently, was thought to be an alternative form. It was suggested that the operators of public vehicles engaged exclusively in inter-State trade may, consistently with s. 92, be required to make some special contribution to the expenditure necessarily involved in the construction and maintenance, or, in the maintenance, of such roads. The imposition of such a liability, to the extent of what is termed reasonable compensation for excessive wear and tear or excessive damage to roads by heavy traffic, would not, it is said, impair the freedom guaranteed by s. 92. The imposition of such a liability, it is contended, would not impair that freedom for to deny the State the right to make such charges would place inter-State transport operators in a specially privileged position and go much further than merely preserve their constitutional freedom. The basis of the contention, however, that the imposition of such charges would not constitute an unlawful burden upon inter-State trade really rests upon the circumstance that the State has adopted the policy of raising, at least, some portion of its revenue for the purpose of road construction and maintenance by means of special imposts upon those, or some of those, who operate vehicles on the public roads. From this state of affairs is derived the conception that those upon whom the imposts fall are merely paying, in some measure, for facilities provided for and made available to them by the State. Accordingly, it is contended, such imposts, when levied as a condition of the use of the roads by the operators of vehicles engaged in inter-State trade, are merely charges for facilities provided and, since those operators receive money's worth in return for payment of the charges, they are not subjected to any unconstitutional burden. The fallacy of this line of reasoning is, I think, made clear by a brief reference to the manner in which the public revenues of the State may be raised. The expense of undertaking such maintenance of the public roads as is undertaken is ultimately a charge on the public revenues of the State and, subject to any relevant constitutional limitation or prohibition, the State may raise its revenues as it wishes. It may impose special taxes to meet particular classes of expenditure and the incidence of those taxes may fall on particular persons or groups of persons. It may, for instance, impose a special tax on those who use the State railway system to assist in meeting the working costs of that system. Or, on the other hand, it may impose taxes for that purpose on the residents of areas served by the railway system or, indeed, it may impose special taxes for this purpose in any one of a great variety of ways. Again, the expenditure involved in the construction or maintenance of public roads may be provided for by special taxes on those who operate vehicles upon the roads, or on other classes of persons who are thought to obtain special benefits from their use, or, on the other hand, by a specific appropriation from a tax for general purposes levied throughout the State. Now, if the latter course were adopted, a requirement that operators of vehicles coming into the State from other States should, as a condition precedent to the continuance of their inter-State journeys, pay a special tax by way of contribution to the expense of road construction or maintenance would clearly appear as an infringement of s. 92. Such an impost would strike at the very heart of s. 92. But, as a matter of government policy, it has been the practice to impose special charges or taxes for the use of vehicles on the public roads of the State and that circumstance is seized upon to found the contention that the imposition of charges of a similar nature on inter-State road traffic, provided that such charges are reasonable, or compensatory only, does not constitute any real burden on inter-State trade and therefore is compatible with s. 92. As I have already indicated I have great difficulty in giving any real meaning to the words "reasonable" and "compensatory" in this contention, or in understanding why, if the State may lawfully levy charges or taxes of this nature, its authority should, or ought to be, restricted by either of these conceptions. It is clear, of course, that the State may raise its revenues by the imposition of taxes for either general or special purposes, and it may levy such taxes generally throughout the State or upon or in relation to such particular persons or classes of persons as it designates. Its revenue, however raised, will be expended on the public purposes of the State and taxpayers from whom it has been raised may always, broadly, be said to have made a payment for services or facilities received, or to be received, or for the carrying out of public works which they, as members of the community, or of some special class, enjoy or will enjoy. Perhaps this conception is more readily recognizable when a tax is levied for a special purpose upon those persons whose special benefit it is thought the purpose will serve. But whatever course is adopted the power to levy imposts or taxes is subject to the constitutional limitation which arises from the terms of s. 92 and it seems clear to me that any impost or tax, or so-called charge, whether levied upon a limited class for special purposes or by way of contribution to a tax for general purposes, which is made payable as a condition of engaging in or carrying on inter-State trade, must offend against s. 92.
There is, however, one observation which I wish to make and which may perhaps be regarded as, though I do not see it as, a qualification of this view. I should have thought that it is competent for a State to exclude from its roads those vehicles which, by reason of their weight or construction, are calculated to work such destruction to the roads that they ought not to be there at all. To prohibit the operation of such vehicles on the roads would not be to prohibit the owner thereof from engaging in inter-State trade, but merely from engaging in that class of trade with a vehicle of that character. Cases in which vehicles may be excluded altogether from the roads may, perhaps, arise only on rare occasions, though it is possible that the use of a vehicle may, for special reasons, be prohibited on some particular roads though not on others. The concluding observation which I wish to make concerns vehicles which may find their way into one of these categories for, it seems to me, if it be permissible to prohibit the use of such vehicles then the prohibition may lawfully be relaxed upon terms. That is to say, I see no reason why in such cases payment of a stipulated charge should not be made a condition of the relaxation of the prohibition. But I am unable to perceive that, in any other circumstance, charges may legitimately be levied in respect of vehicles engaged in inter-State trade.
I should, perhaps, add before concluding the discussion on this point that the general notion that the public roads of the State constitute facilities provided exclusively by the State for the vehicles which use them presents a quite incomplete conception of the part that the construction and maintenance of such roads play in the life of the State. As was pressed upon us by the defendants there is, of course, considerable truth in the view that persons engaged in commercial transport operations make a special use of them, but they do so only as instruments by which the needs of the community are served. The work of constructing and maintaining public roads is essential to the development of the country generally and in the wider - and very real - sense those works are undertaken for the benefit and use of the community generally.
With these observations in mind it is convenient to consider the effect of the decision of the Judicial Committee. In the first place it affirmed the proposition that regulation of trade, commerce and intercourse among the States is compatible with its absolute freedom. But this statement of principle immediately raises the problem of what is meant by the expression "regulation" for used in this context it can be understood only as a convenient word to describe that form of direction or control of physical operations which, though operating directly upon inter-State trade, yet leaves it, in the language of s. 92, absolutely free. Practical considerations suggest many rules of conduct which may properly be regarded as regulatory in this sense, but the same considerations also disclose the impossibility of formulating any general criterion fixing the boundary line in all cases between what is and what is not "regulation". But, as at present advised, there is, I should think, one common feature in all so-called regulatory rules. They do not purport to control or regulate inter-State trade or commerce as such; on the contrary they relate to some activity by means of which the particular form of inter-State trade under consideration is carried on. In the present case the particular activity involved is the operation of motor vehicles in the course of that trade and many examples are to be found of rules which may properly be regarded as regulatory of such an activity. A number are to be found in the passage in the reasons of Fullagar J. in McCarter v. Brodie [1] which was quoted by their Lordships of the Judicial Committee [2] . In general, these examples relate to the regulation of vehicular traffic on the roads in the strictest sense. But, in addition to rules of this kind, the Judicial Committee observed that: "Their Lordships can imagine circumstances in which it might be necessary, e.g. on grounds of public safety, to limit the number of vehicles or the number of vehicles of certain types in certain localities or over certain routes, with the result that some applicants might be unable to obtain licences" [3] . The examples given by Fullagar J. in McCarter v. Brodie [1] , are readily recognizable as examples of restrictions which leave the absolute freedom of trade and commerce unimpaired whether they be regarded as rules relating to the use of the highways generally or to their use by any particular person. Alone they do not exclude any person from the use of the highways. Of the same type are rules which prescribe minimum conditions of roadworthiness for vehicles the owners of which desire to use them upon the roads. Such rules may directly result in the imposition of a conditional prohibition upon particular individuals, yet, nevertheless, may be regarded as "regulatory". Features of another kind arise when a third class of rules comes to be considered. Practical considerations suggest that rules prescribing, for instance, that only persons holding certificates of competency shall pilot aeroplanes cannot be regarded as an infringement of the freedom guaranteed by s. 92. Rules forbidding unqualified persons from driving motor vehicles on a public highway give rise to similar considerations, but they may well result in the exclusion of individuals from particular forms of inter-State trade and commerce among the States. Yet, nevertheless, such rules do not invade the individual freedom guaranteed by s. 92. This same class of rules may deal with circumstances such as age or mental capacity and may, in some instances, result in the imposition of a prohibition which is permanent and cannot be overcome by the attainment of a prescribed standard of proficiency or capacity. Yet, again, practical considerations make it clear that such rules do not impair the freedom of any individual. In each of these classes of rules there is a common feature. They spring from considerations directly concerned with the safety of traffic on the roads and their object is sought to be achieved by the regulation of the conduct of individuals in relation to an activity which may, in some circumstances, constitute an essential element in the carrying on of trade and commerce among the States. Such rules may, of course, result in partial prohibition or prohibition sub modo. But although the further class of rules envisaged as a possibility by the Judicial Committee, put as it is on grounds of public safety, appears to spring from the considerations upon which traffic rules generally are based the formulation of rules in this category would, or at least might, give rise to very different results. The same reasons may be thought to lead both to the exclusion from road traffic of a mechanically dangerous vehicle and to the prescription of a limit on the number of vehicles which may be used on any particular road or roads. But the owner of a dangerous vehicle may equip himself with a roadworthy vehicle and, subject to doing this, be free to engage in inter-State trade. On the other hand, the owner of a roadworthy vehicle may, under a rule of the latter class, be excluded indefinitely from inter-State trade simply because existing road users are already operating a specified number of vehicles over portions of an inter-State route or routes. Indeed, a rule of that class might well operate to exclude entirely from the roads of one State motor traffic originating in another State, or, under the legislation under review in this case, in the exclusion from inter-State trade of all vehicles registered in New South Wales in the interests of the operators of motor vehicles engaged in intra-State trade in New South Wales. And, indeed, this might be done notwithstanding the fact that any number of vehicles may use the roads so long as they do not engage in the carriage of goods or passengers.
It is, I should think, possible now to say that the vital provisions of the Act under review go far beyond any conception of what may properly be regarded as "regulation" of the traffic concerned. In the first place s. 17 (2), in spite of the words contained in parenthesis, purports to authorize the imposition of conditions which travel far beyond this limit. Such conditions may include conditions limiting the use of the licensed vehicle for the carriage of goods of a specified class or description or concerning the circumstances in which goods and passengers may be conveyed. These provisions purport to authorize the imposition of conditions which, for purposes quite unrelated to the regulation of traffic as such, would, at the discretion of the commissioner, substantially exclude licensees from inter-State trade and commerce. Secondly, the grounds upon which the commissioner may refuse an application for a licence clearly indicate that sub-s. (4) of s. 17 may operate far beyond the bounds of "regulation". If the commissioner is satisfied that the applicant is not a fit and proper person to hold a licence he may refuse the application. This means no more and no less than that the application may be refused if the commissioner is satisfied that the applicant is not a fit and proper person to engage in such trade. I confess that even if I were able to comprehend the qualities which constitute fitness or propriety in this connection I would still be unable to see how such a provision could ever be relevant to the regulation of motor traffic on public roads or how it could be said to leave unimpaired the freedom guaranteed by s. 92. Moreover, other grounds of refusal, namely, that the operation of the vehicle would create or intensify conditions giving rise to unreasonable damage to the roads or danger to persons or vehicles using the roads or unreasonable interference with other traffic on the roads, are expressed in terms so wide as to include matters not relevant to the regulation of motor traffic on the roads. Although these provisions may in some respects be based upon conceptions of public safety, they fail to define with any degree of precision the limits of the commissioner's discretion and it is, therefore, impossible for this Court, on any view of the matter, to say that his discretion is appropriately confined. Much of the language employed represents an unfortunate choice if it was intended so to confine the commissioner's discretion for it is obvious that, although their Lordships of the Judicial Committee were able to imagine circumstances in which it might be necessary to limit the number of vehicles or the number of vehicles of certain types in certain localities or over certain routes, those circumstances by no means exist simply where "the operation of the vehicle would create or intensify conditions giving rise to unreasonable damage to the roads or damage to persons or vehicles using the roads or unreasonable interference with other traffic on the roads".
Finally, the provisions of the Act which purport to impose charges as a condition of the use of vehicles "in the course of and for the purposes of inter-State trade" are, for reasons which are apparent from what has already been said, clearly invalid. In the result, therefore, I am of the opinion that the licensing system erected by the Act of 1954 is one which, at every point, infringes s. 92, and the provisions of s. 3 (2) are incapable of saving any part of the legislation upon which it depends.
Much of what I have already said concerning the authority of the State to impose charges for the use of public roads applies with equal force in considering the Motor Vehicles (Taxation) Act 1951 and the Motor Vehicles Taxation Management Act 1949-1951 and were it not for the decision in Willard v. Rawson [1] it would have been sufficient to dispose of this aspect of the matter by saying that it follows that those Acts cannot validly operate with respect to vehicles engaged exclusively in inter-State trade and commerce. But by the decision referred to the validity of a Victorian statute - the Motor Car Act 1928-1930 - in terms not essentially dissimilar to those of the Motor Vehicles (Taxation) Act, was affirmed. In general, however, the reasons of the majority of the Court in that case, which were analyzed by Dixon J. (as he then was) in R. v. Vizzard; Ex parte Hill [2] , are now, at least, of doubtful validity. Their Lordships of the Judicial Committee were not invited to review Willard v. Rawson [1] in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [3] but it is clear from their later observations in that case that they were of the opinion that the conception that the railways and roads formed facilities for the carriage of goods for the provision and maintenance of which the State is responsible was not a factor capable of limiting the application of the principles laid down in McCarter v. Brodie [4] to cases of inter-State transport. I take this to mean that the conception is inadequate to justify the creation of a power, exercisable at the discretion of a licensing authority, to deny the use of the public roads of the State to the operator of a motor vehicle engaged in inter-State trade. If this be so, it is also inadequate to justify a power to deny the use of such roads in the case of such a vehicle except subject to the payment of an impost prescribed by the legislature. The prohibition upon the use of the roads by inter-State operators which is the result of the Acts under consideration in this case must now be taken to be direct and immediate, notwithstanding the view entertained by Rich J. in Willard v. Rawson [1] that the burden imposed by the Act under consideration in that case was "consequential, mediate or indirect, and not a direct, immediate or intended burden or restraint imposed upon trade, commerce or intercourse among the States" [5] . The conditional prohibition on the use of the roads which that Act erected may not have been thought to have been devised with the intention of impeding or burdening trade and commerce among the States, but the Act directly operated to prohibit the movement of such vehicles in the course of inter-State trade and permitted it only upon payment of the charges imposed. The view entertained by Starke J. that the charges imposed could properly be regarded as "a reasonable adjunct to the main provisions of the Acts" [1] and that they took the colour or character of registration or licence fees from these provisions was not entirely shared by the rest of the Court and is not open in this case. The Motor Vehicles (Taxation) Act 1951 is expressed to be "An Act to impose certain taxation upon motor vehicles, tractors and trailers" and expressly imposes a motor vehicle tax in accordance with the scheduled rates. But even if the imposts were not expressly declared to be taxes there can be no doubt upon a consideration of the imposts themselves and the circumstances of their imposition that this is their true character. The ground upon which Evatt J. considered that the Act should be upheld is no longer of any validity [2] . I do not understand the observations of Fullagar J. in McCarter v. Brodie [3] as giving approval, as was suggested in argument, to the reasoning in Willard v. Rawson [4] . 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. Nor do I think that the adoption by the Judicial Committee of certain observations of the same learned Justice in Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [5] - containing as they do statements concerning the authority of a State or of the Commonwealth to make a charge for the use of "trading facilities", such as bridges and aerodromes - carries with it any suggestion that charges of any kind may, consistently with s. 92, be made for the use of public roads by vehicles engaged in inter-State trade.
For the reasons given I agree with the order proposed by the Chief Justice.
Hughes & Vale Pty Ltd
New South Wales
High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. Hughes & Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28
Plaintiffs' demurrer to the defence allowed. Judgment in the suit entered for the plaintiffs with costs. Declare that s. 3 (3) and the Third Schedule of the State Transport (Co-ordination) Amendment Act 1954 (No. 48 of 1954) N.S.W. is invalid. Declare that the Motor Vehicles Taxation Management Act 1949-1951 N.S.W. and the Motor Vehicles (Taxation) Act 1951 N.S.W. cannot validly apply in respect of vehicles used exclusively in or for the purpose of inter-State trade commerce or intercourse.