Boardman v Duddington [1959] HCA 64; (1959) 104 CLR 456 (4 December 1959)

HIGH COURT OF AUSTRALIA

BOARDMAN v. DUDDINGTON [1959] HCA 64; (1959) 104 CLR 456

Constitutional Law (Cth)

High Court of Australia
Dixon C.J.(1), Fullagar(2), Kitto(3), Taylor(4), Menzies(5) and Windeyer(6) JJ

CATCHWORDS

Constitutional Law (Cth) - Freedom of inter-State trade, commerce and intercourse - Statute imposing charge on all heavy commercial goods vehicles using public highways in Queensland - Charges to be applied towards compensation for wear and tear caused to such highways - Whether Statute validly applies to vehicles engaged in inter-State trade - Subsequent amendment of another Statute requiring licences to be obtained for vehicles using public roads in Queensland and fees to be paid therefor, so as to reduce such licence fee by the amount of the charge for road maintenance under the former Statute - Vehicles being used in inter-State trade not subject to licence fee - Whether amendment a discrimination against inter-State vehicles - Whether it affected the validity of the road maintenance Statute - The Constitution (63 & 64 Vict. c. 12), s. 92 - The Roads (Contribution to Maintenance) Acts 1957 to 1958 (Q.), ss. 3, 4, 5, 7, 8 and First Schedule cl. 1 - The State Transport Facilities Acts and Another Act Amendment Act of 1959 (Q.), ss. 8, 13.

HEARING

Melbourne, 1959, October 6, 7;
Sydney, 1959, December 4. 4:12:1959
APPEAL from the Court of Petty Sessions, Brisbane, Queensland.

DECISION

December 4.
The following written judgments were delivered:-
DIXON C.J. The question submitted by the argument in this case for the journey of the charge imposed upon a commercial goods vehicle by s. 3 (1) of The Roads (Contribution to Maintenance) Acts 1957 to 1958 (Q.). The proceeding is an appeal from a conviction before the Court of Petty Sessions at Brisbane for an offence against s. 8 (1) (e) of that statute. The defendant relied upon s. 92 of the Constitution thus bringing the case within the federal jurisdiction of the magistrate whose decision accordingly became subject to a direct appeal to this Court. (at p461)

2. The evidence to establish the offence consisted simply of admissions of fact. According to those admissions the defendant was during the months of May 1958 and as at 15th June 1958 the owner of an International motor vehicle and a trailer. On 16th May 1958 the vehicle with the trailer travelled from Dalby in Queensland to Tweed Heads in New South Wales carrying a load of grain. This has been assumed to be an operation of inter-State trade. Perhaps it was so, but if Tweed Heads formed no more than the furthest point of a detour into New South Wales in a journey from Dalby to Brisbane, the assumption may be ill-founded: see Harris v. Wagner [1959] HCA 60; (1959) 103 CLR 452 . The grain was carried for reward and the load capacity of the vehicle exceeded four tons. The Commissioner of Transport has nevertheless received no payment under the Act in respect of the vehicle and trailer for the month of May 1958. (at p461)

3. There is no doubt that the vehicle and trailer fall within the definition in the Acts of "commercial goods vehicle". Section 3 (1) provides that the owner of every commercial goods vehicle shall as provided in the Act pay to the Commissioner towards compensation for wear and tear caused thereby to public highways in Queensland a charge at the rate prescribed in the first schedule. The first 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 (a) the tare weight of the vehicle and (b) forty per cent of the load capacity of the vehicle per mile of public highway along which the vehicle travels in Queensland. The schedule proceeds to deal with fractions in the constituents of the formula but that has no bearing upon the case. Sub-section (2) of s. 3 provides that 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 the Act provided. The Act in fact provides that records of journeys must be made and must be delivered to the Commissioner before the fourteenth day of the following month and that the amount of the charge owing must then be paid: ss. 4, 5 and 8. Any amount unpaid may be recovered by the Commissioner in a court of competent jurisdiction: s. 9. (at p462)

4. In the amount of the charge and in every respect the Act closely follows the provisions of Pt. II of the Commercial Goods Vehicles Act 1955 (No. 5931) of Victoria, the validity of which was upheld in Armstrong v. State of Victoria (No. 2) [1957] HCA 55; (1957) 99 CLR 28 for reasons appearing in the report. One distinction exists in the vital provision governing the application of the proceeds of the charge. The Victorian s. 30, after directing that the moneys must be paid into a special account of the Country Roads Board Fund called the Roads Maintenance Account, provides that 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 7 of the Queensland Act corresponds but the variation is found in its providing that money to the credit of the Queensland Roads Maintenance Account shall be applied to the maintenance of public highways (including grants to local authorities for that purpose) as the Minister of the Crown charged for the time being with the administration of The Main Roads Acts 1920 to 1952 shall direct. The power of direction thus reserved to the Minister is confined to the maintenance of public highways, an expression meaning streets, roads, lanes, bridges, thoroughfares or places open to or used by the public for passage with vehicles. The variation seems of little or no materiality. (at p462)

5. Since the Queensland Act imposes a road charge so closely resembling the Victorian model it is unnecessary to do more than to refer in brief terms to the features which are directly material to the valid application of the charge to the inter-State carriers of goods. The consideration that it is a mileage rate, that it is uniform over intra-State and inter-State traffic, that the basis is a proportion of the load capacity of the vehicle and its tare weight, that the proceeds of the charge are devoted to maintenance of roads and that there is no reason to suspect that it contains any element of contribution to capital construction, all this forms the prima facie ground for regarding the charge as likely to be valid in its relation to inter-State traffic. It is true that the charge applies without differentiation to each and every mile of the journey and without any regard to the nature and quality of the roads or highways traversed, but that is not inconsistent with its being a charge reasonably commensurate with its compensatory purpose. (at p463)

6. In the case of Victoria, there appeared no reason to think that the charge meant a prohibitive burden or an exaction of a contribution excessive for the purpose. In Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 there is a recapitulation of features of the Victorian road charge to much the same effect. After the Victorian Act had been upheld the legislature of New South Wales enacted the Road Maintenance (Contribution) Act, 1958 (N.S.W.). There was nothing on the face of the Act to explain why the legislature of that State adopted the same rate for the charge as that adopted in Victoria. (at p463)

7. When the validity of the Victorian enactment was impugned an attempt was made to establish by evidence that in fact the rate was fair and commensurate with the allowed purpose. When an attack was made on the New South Wales measure that was not done. The proofs in Armstrong's Case [1957] HCA 55; (1957) 99 CLR 28 , even if they tended to quieten doubts as to the true purpose and effect of the charge, left much to be desired. Perhaps having regard to the difficulties of statistical proof and to the equivocal lines of reasoning that had been used in the Victorian case, it was thought better in the New South Wales case simply to point to the parallels in the conditions prevailing in the two neighbouring States. Nevertheless the Court in the end upheld the validity of the Road Maintenance (Contribution) Act, 1958 (N.S.W.): Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 . (at p463)

8. For myself I began with a prima facie presumption that to levy a compulsory contribution to the revenue of a State is to tax and that if the tax is laid upon the carriage of goods between States it is incompatible with the freedom declared by s. 92. But I regarded the nature and character of the legislation itself, when considered with the circumstances in which it would operate, as raising a counter presumption. My conclusion was expressed thus: "When, however, a scrutiny of the measure shows that it professes to be a contribution to the maintenance of the highway, that the application of the money raised is in substance and in purpose confined to the maintenance of highways, that it is a mileage rate calculated by reference to the use made of the highway, that it is computed by reference to weight and load capacity, that it is confined to heavier traffic, that it is uniform as between intra- and inter-State traffic, that in the absence of evidence or information to the contrary it did not carry on its face any impression of harshness, excessiveness or arbitrariness or disproportionateness to what had already been upheld in the case of Victoria, then all these raise a counter presumption that the charge possesses a foundation bringing it within the doctrine explained and adopted in Armstrong's Case (1957) 99 CLR 28 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) [1955] HCA 28; (1955) 93 CLR 127 . No material 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 of New South Wales in its material provisions": Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280, at pp 295, 296 . (at p464)

9. Now the legislature of Queensland has followed the course almost exactly taken by the legislature of New South Wales. But the analogy afforded by the relevant conditions of Queensland is remoter still from those of Victoria than were the conditions of New South Wales. Do the matters which I enumerated in the foregoing passage suffice to raise a counter presumption of enough strength to warrant us in sustaining the validity of the Queensland contribution to roads maintenance charge? The defendant maintains that we ought not to act upon such a counter presumption but in any case he also enlists the aid of statistics. He relies upon statistics given under s. 4 of ch. 19 of the Commonwealth Year Book 1958 (vol. 44) (marked as an exhibit before the magistrate). He relies upon them to show that whatever was right in the case of the upkeep of roads in the two other States must be wrong in the case of the maintenance of Queensland roads. There is no purpose in discussing in this judgment the possibility of using these statistics. They were collected and prepared for altogether different purposes. They are constructed upon bases not only inappropriate to the purpose in hand but widely differing as between different States. During the argument enough was said about it to show that the statistics could really be of little help as an indication of the excessiveness of the charge as a contribution to road maintenance. (at p465)

10. 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) [1955] HCA 28; (1955) 93 CLR 127, at pp 171-179, 190-195, 208-211 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. (at p465)

11. That question did not arise at the commencement of The Roads (Contribution to Maintenance) Act of 1957 (Q.) It was raised only by the passing of The State Transport Facilities Acts and Another Act Amendment Act of 1959 (Q.). One of the conditions we have laid down for the valid application of a road maintenance charge to inter-State transport is that the charge must be imposed uniformly without regard to the intra-State or inter-State character of the use of the vehicle. The reason for this may be found in the view that once a burden falls particularly upon inter-State traffic it can no longer be regarded as part of the cost of conforming with obligations necessarily and properly incidental to the description of activity or business in the given State to which all alike are exposed. Another reason is that a purpose is disclosed which must vitiate it. It is a reason to which I referred in Armstrong's Case [1957] HCA 55; (1957) 99 CLR 28 as follows: "Once however it appears that, under colour of the law, the charge is imposed not for the purpose of obtaining a proper contribution to the maintenance and upkeep of the work but for the purpose of adversely affecting the inter-State commerce, then whatever its guise it is called in question by s. 92 as an infringement of the freedom of trade commerce and intercourse among the States (1957) 99 CLR, at p 44 ". The defendant contends that the provisions of s. 8 (2) (b) and s. 13 (2) of The State Transport Facilities Acts and Another Act Amendment Act of 1959 (8 Eliz. II No. 21) produce an invasion of this rule. (at p466)

12. As is well known The State Transport Facilities Acts 1946 to 1955 (Pts. III, IV and VI) imposed a control of the commercial carriage of persons and goods upon Queensland roads and authorized the collection of fees. The use of any vehicle at any time on any road for the carriage of passengers or goods is forbidden unless the passenger or the goods as the case may be are being carried under and in accordance with the provisions of Pt. III: (s. 23). A long list of things is provided which may be done by vehicles: (s. 24). Some things in the list are defined by reference to the governmental, public, charitable or other service that is performed, some by reference to a domestic or private purpose, some by reference to the rural products carried, and some by reference to the claims to exemption of certain descriptions of commodities, e.g. firewood, fertilizers, empty bottles, newspapers, road metal and the like. Sometimes the ground is the shortness of the journey, the feeding of a railway or the lack of railway competition. (at p466)

13. The two clauses that matter here are par. 25 and par. 26 of s. 24. The former exempts any vehicle approved for use in carrying on a licensed service at any time when such vehicle is carrying passengers or goods or both passengers and goods under and in accordance with the terms and conditions of the licence for such service. The latter exempts any vehicle permitted under the Act to be used for any purpose at any time when such vehicle is being used for such purpose under and in accordance with the terms and conditions of the permit. A licence is a continuing thing while it would seem that a permit should be given for an occasion or occasions. The provisions relating to licences and permits occur in Pt. IV and Pt. VI. The licence may have a period up to seven years and is subject to terms and conditions stated therein which are within the discretion of the Commissioner of Road Transport. One condition may be the payment of a licensing fee which may be calculated in one or other of a number of ways specified in the licence including by a percentage of gross revenue or a rate upon goods carried: ss. 32 (ix), 34 (1) (iii) and 35 (2). It is not necessary to state the effect of the provisions relating to permits. It is enough to refer to s. 56 which provides that the payment of a fee or fees may be made a condition of a permit and that the deposit with the Commissioner of money or a bank cheque as security for the fee may be required. (at p467)

14. If a licensee wishes to sell or otherwise to dispose of a licensed service he must give the Commissioner twenty-one days notice and comply with any directions the Commissioner may give to him: s. 42. A licence may be transferred upon the application of the licensee to a transferee under and subject to such terms and conditions as the Commissioner may determine; the Commissioner may refuse the transfer on the ground that it would not be desirable in the public interest. (at p467)

15. Section 35 deals in detail with a licensing fee and s. 59 similarly with a fee for a permit. Sub-section (2) of s. 35 gives the commissioner a discretion to fix or assess the licensing fee in various ways subject to certain limits of amount. The methods include rates per ton mile. Section 59 gives a like discretion, with a somewhat narrower choice, in the case of permits. By s. 8 of The State Transport Facilities Acts and Another Act Amendment Act of 1959 which was assented to on 10th April 1959 the following paragraph was added to sub-s. (2) of s. 35 of the Acts of 1946-1955: "Where amounts respectively of a licensing fee under this Act and of a charge under The Roads (Contribution to Maintenance) Acts 1957 to 1958 are payable in respect of any use on a road of any motor vehicle, the Commissioner may reduce that amount of licensing fee by not more than that amount of that charge." Sub-section (1) of s. 8 provides that the foregoing amendment shall be deemed to have been made on 1st February 1958, which seems to have been the date proclaimed for the commencement of The Roads (Contribution to Maintenance) Act of 1957. A similar amendment was made to s. 59 by s. 13 (2) in relation to fees for permits. That too was made, by sub-s. (1), retrospective to 1st February 1958. It does not appear whether there had been some administrative practice of allowing a deduction of the amount of the contribution to roads maintenance charge but unless that was so it is to be assumed that the full amount of the licensing fee was regularly collected and it is not easy to see how precisely the retrospective operation of the amendments worked in the case of licence fees already paid. (at p467)

16. The defendant however objects that the effect of the two amendments is to relieve all licensees and all holders of permits of the liability to pay fees to the extent to which they pay the contribution to roads maintenance charge; that means, he says, that in substance though not in form the whole of that charge is thrown on vehicles engaged in inter-State trade. These are substantially the only vehicles which do not bear the licence and permit fees under The State Transport Facilities Acts. They do not bear them because s. 92 protects inter-State traffic from Pts. III, IV and VI. See Hughes and Vale Pty. Ltd. v. State of New South Wales [1954] HCA 61; (1955) AC 241; (1954) 93 CLR 1 and Hughes and Vale v. State of Queensland [1955] HCA 29; (1955) 93 CLR 247 . There are doubtless a few other carriers who do not pay the licence or permit fees; those for example carrying firewood, fertilizers, empty bottles, newspapers, road metal and the like, those making short journeys or feeding a railway service and so on. But they are, it is said, of little moment in comparison with the carriers of goods across the border. The contention therefore is that in substance the contribution to roads maintenance charge becomes a differential impost burdening those engaged in inter-State traffic to the exclusion of the greater number of intra-State carriers. (at p468)

17. Before dealing with this argument it is perhaps as well to notice some points affecting the operation of the amendments. In the first place the language authorizes the Commissioner to reduce the amount of the licensing fee. It speaks of a licence fee and a charge payable in respect of any use on a road of any motor vehicle. That postulates two exactions in respect of the same use by the same vehicle of the same road or roads. The one exaction is the licensing fee: the other is the contribution to road maintenance charge. The amendment directs that the Commissioner may reduce the amount of the former by the amount of the latter. Probably to pursue the contemplated procedure strictly is not administratively easy and to do it retrospectively is even more difficult. It will be seen that the Commissioner is not bound to make the deduction; according to the language of the amendment he "may" do so, which presumably means that he has a discretion. However, that cannot matter if the effect is to authorize an inequality between intra-State and inter-State traffic although it is done by a provision expressed as a discretionary power. If s. 92 is viewed simply as a provision delimiting, in the sense of defining, legislative power there is then of course some difficulty in seeing how The Roads (Contribution to Maintenance) Act of 1957 could begin as a statute validly applying to inter-State traffic and then cease validly so to apply simply because another statute reduced by an equivalent amount the incidence of a charge on intra-State traffic. But what s. 92 does is not directly and in terms to define power but to protect inter-State trade, commerce and intercourse from restraints and interferences of an ascertained or ascertainable category by legislative or executive action. It appears to me to be at least theoretically possible that a law which at first lies outside the forbidden category, may be brought within the category by subsequent legislative action. Nor is it impossible to do it retrospectively provided that by the retrospective provision new enforceable rights or obligations would, but for s. 92, come into existence and they would be of a kind which would effect a change in the application of the law so that it would be of the description or category which is inconsistent with freedom of inter-State trade etc. This on certain views, might possibly prove material in this case for when the alleged offence took place The State Transport Facilities Acts and Another Act Amendment Act of 1959 had not of course been passed. (at p469)

18. But the question remains whether the amendments did destroy the uniformity of the application of the contribution to road maintenance charge. (at p469)

19. The amendment affected in no way the legal operation of The Roads (Contribution to Maintenance) Acts. The same people remained under the same obligations to pay the same sums of money in the same events. The money thus raised fell into the same fund and continued applicable exclusively to road maintenance. What it did was to treat the payment so made by a person who also incurred a liability to another exaction - a tax - as a ground of relief pro tanto from that exaction. Now this concession could not matter unless in some way it gave an advantage to the carriers obtaining it over inter-State carriers. It does not increase the liabilities of inter-State carriers; it does not reduce the liability of intra-State carriers to the contribution to roads maintenance charge. What it does is to reduce pro tanto the latter's liability, from which the inter-State carrier is free, to pay licence fees. Now if licence fees were something more than a tax, if they were the price of a valuable right, as for example licence fees to exercise a patent might be, one could see that by the reduction of price something was being actually given to the licensee. Reduction of tax no doubt is itself a benefit but it could not operate to prefer the intra-State licensed carrier to the inter-State carrier because the latter never pays the fee and needs no licence. To produce such a preference it is necessary to find some positive benefit placing the intra-State carrier in a superior position to that occupied by the inter-State man. This was realized by counsel for the defendant, who however sought to meet it by establishing that a licence conferred a monopoly of value, and that to reduce the licence fee by the amount of the charge meant a real advantage to the licensee giving him, in the consequent inadequacy of the payment for the monopoly conferred by the licence, not merely an advantage in itself but an advantage over the inter-State carrier. For this counsel relied upon (1) the legislative requirement of a licence, (2) the discretion to grant or refuse it, (3) the policy or intention ascribed to the provisions that licences should not be granted without regard to the needs of the routes, and (4) the provisions already referred to as to the transfer of licences. These considerations, however, are of insufficient certainty and strength to establish the conclusion. The inference which must be drawn to make it possible for the argument to succeed is that as between the inter-State operator and the intra-State operator the total effect of the legislation is to put the latter in a better position than the former with respect to an equivalent operation. That inference is one that has not been established and is one which I am certainly not prepared to draw. (at p470)

20. For the foregoing reasons I think that s. 3 of The Roads (Contribution to Maintenance) Acts 1957 to 1958 validly applied to the defendant in May and June 1958 and he was rightly convicted under s. 8 (1) (e). (at p470)

21. The appeal should be dismissed. (at p470)

FULLAGAR J. In this case I agree with the judgment of the Chief Justice, and I have nothing to add. (at p470)

KITTO J. Notwithstanding Mr. Gibbs' careful argument, I am unable, on the basis of the standing decisions, to see any ground on which this appeal can succeed. (at p470)

2. I agree in the judgment of the Chief Justice as an application of the method which has been worked out for resolving the kind of question which this case raises. (at p470)

TAYLOR J. I agree with the other members of the Court that The Roads (Contribution to Maintenance) Acts 1957 to 1958 (Q.) does not present any features which materially distinguish that legislation from the legislation which we were called upon to consider in Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 . Nor for the reasons which have already been given does s. 8 of The State Transport Facilities Acts and Another Act Amendment Act of 1959 (Q.) create a situation of any constitutional significance. That being so the decision in the case referred to makes it inevitable that this appeal should be dismissed. (at p471)

MENZIES J. The appellant, the owner of a commercial goods vehicle, was charged with and convicted of an offence under The Roads (Contribution to Maintenance) Acts 1957 to 1958 (Q.), in having failed to pay the charges payable pursuant to the provisions of the Acts in respect of travel by his vehicle on the public highways of Queensland during the month of May. His only defence and his only ground of appeal is that the travel in question was in the course of inter-State trade and so by virtue of s. 92 of the Constitution he was free from the charges imposed by the Acts. (at p471)

2. The Roads (Contribution to Maintenance) Acts of Queensland are substantially the same as the Victorian Act upheld in Armstrong v. State of Victoria (No. 2) [1957] HCA 55; (1957) 99 CLR 28 and the New South Wales Act upheld in Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 . Prima facie, therefore, the Queensland Acts validly apply to the appellant's use of the roads in the course of inter-State trade. (at p471)

3. Mr. Gibbs, however, sought to distinguish these cases in two ways. In the first place it was said that in this case there was evidence that the State of Queensland spent less per mile than did the States of Victoria and New South Wales on the maintenance of highways so that it could not be inferred that a charge for maintenance held proper and valid for the States of Victoria and New South Wales was also proper for the State of Queensland. To prove that Queensland spent less per mile on the maintenance of its highways than either Victoria or New South Wales and to prove no more, would not afford any satisfactory ground for distinguishing the charge here in question from those upheld by the earlier authorities; but in any event the figures in the Year Book of the Commonwealth of Australia 1958 for the year ending 30th June 1956, upon which Mr. Gibbs relied to prove his contention, do not prove what he claimed because the statistics published for the different States seem to me not to be susceptible of satisfactory comparison as they have no common basis. (at p471)

4. In the second place, Mr. Gibbs relied upon an amendment to The State Transport Facilities Acts (Q.) made by The State Transport Facilities Acts and Another Act Amendment Act of 1959 which by s. 8 provided, with effect from 1st February 1958 (the day on which The Roads (Contribution to Maintenance) Act of 1957 came into force) as follows: "Where amounts respectively of a licensing fee under this Act and of a charge under The Roads (Contribution to Maintenance) Acts 1957 to 1958, are payable in respect of any use on a road of any motor vehicle, the Commissioner may reduce that amount of licensing fee by not more than that amount of that charge." This Act also contains in s. 13 a corresponding amendment in relation to fees for permits payable under The State Transport Facilities Acts. It was contended that these amendments invalidated ab initio The Roads (Contribution to Maintenance) Acts 1957 to 1958 by bringing these Acts into conflict with s. 92 of the Constitution because the amendments permitted the application of these Acts in a way which would discriminate against those engaged in inter-State trade. The argument ran this way: the provisions of The State Transport Facilities Acts relating to licences and permits, and the fees payable therefor, have no application to vehicles while being operated in the course of and for the purpose of inter-State trade - Hughes and Vale Pty. Ltd. v. State of Queensland [1955] HCA 29; (1955) 93 CLR 247 ; licence and permit fees under The State Transport Facilities Acts are accordingly payable by those who operate motor vehicles in the course of trade other than inter-State trade and do so in the exercise of a valuable franchise obtained under these Acts; the power conferred by the amending Act of 1959 to reduce such licence and permit fees is therefore a special provision for the benefit of those not engaged in inter-State trade, and, although in form what is authorized is a reduction of licence and permit fees payable under The State Transport Facilities Acts, because the reduction is measured by the charge payable under The Roads (Contribution to Maintenance) Acts, the substance of the amendments is that those not engaged in inter-State trade may be excused payment of the charges imposed by The Roads (Contribution to Maintenance) Acts whereas those engaged in inter-State trade cannot. By this reasoning it was sought to reach a conclusion that the amending Act of 1959 gives The Roads (Contribution to Maintenance) Acts 1957 to 1958 an operation which places those engaged in inter-State trade in a worse position than those not so engaged, so bringing it into conflict with s. 92 with resulting invalidity. (at p472)

5. There are a number of obstacles to the acceptance of this argument. In the first place it is not an easy conception that The Roads (Contribution to Maintenance) Act of 1957 was valid when enacted and became invalid upon the coming into operation of the relevant sections of The State Transport Facilities Acts and Another Act Amendment Act of 1959, that is on 10th April 1959. If the amending Act had the effect which the argument attributes to it, it would seem more rational to treat it as void, rather than to treat it as valid and The Roads (Contribution to Maintenance) Acts as invalidated thereby ; cf. Nilson v. State of South Australia [1955] HCA 31; (1955) 93 CLR 292 . Furthermore, even if the result of the amending Act of 1959 could be regarded as affecting the burden of the maintenance charges imposed by The Roads (Contribution to Maintenance) Acts, it would not be accurate to treat those who are engaged in inter-State trade as the class remaining subject to the charge ; there are other owners of commercial vehicles employed in intra-State trade who do not have to pay licence and permit fees under The State Transport Facilities Acts but who have to pay charges under The Roads (Contribution to Maintenance) Acts. It is not correct, therefore, to describe the amending Act of 1959 as a special law operating to the disadvantage of a particular class, namely, those engaged in inter-State trade ; if it can be said to operate to the disadvantage of any particular class, it is to the class of those not obliged to obtain licences and permits or to pay fees pursuant to The State Transport Facilities Acts. I do not propose, however, to pursue these matters further, because there is in my opinion a more fundamental objection to Mr. Gibbs' argument than those which I have just touched upon. It is that notwithstanding ss. 8 and 13 of The State Transport Facilities Acts and Another Act Amendment Act of 1959, the charges imposed by The Roads (Contribution to Maintenance) Acts remain as they were, charges of a general nature, upon all owners of commercial goods vehicles of a particular description so that those who use their vehicles for inter-State trade and those who use them for the purposes of other trade are alike required to do no more than contribute to the wear and tear of the roads which their vehicles may be expected to cause. Where Parliament has imposed two burdens, namely fees under The State Transport Facilities Acts, and charges under The Roads (Contribution to Maintenance) Acts and it partially relieves those who are subject to both burdens by reducing the fees under The State Transport Facilities Acts by the amount of the charges payable under The Roads (Contribution to Maintenance) Acts, it would be a distortion of what Parliament has done to treat those persons as relieved from the charges under The Roads (Contribution to Maintenance) Acts. A condition of relief from liability under The State Transport Facilities Acts is liability to pay under The Roads (Contribution to Maintenance) Acts and what is reduced is the licence and permit fees which have the character of a tax upon a carrier because he carries goods by motor vehicle : Hughes and Vale Pty. Ltd. v. State of New South Wales [1953] HCA 14; (1953) 87 CLR 49, at p 75; Browns Transport Pty. Ltd. v. Kropp [1958] HCA 49; (1959) 100 CLR 117, at pp 129,130 The amending Act of 1959 no doubt confers an advantage upon those to whom it applies but it does not impose a disadvantage upon those whose only liability both before and after its coming into operation was and is to pay charges under The Roads (Contribution to Maintenance) Acts. (at p474)

6. In my judgment this appeal should be dismissed. (at p474)

WINDEYER J. A reasonable contribution by road users to the cost of maintenance of roads is, I think, a concept related to road maintenance in a broad sense. The cost of maintaining a road against the wear and tear of traffic, so that it will meet the needs of the traffic coming upon it, is not necessarily the bare cost of keeping it in its existing condition. For the proper maintenance of a road, especially one on which the volume of traffic is increasing, some reconstruction and an improvement of its surface may be needed. The maintenance of the roads in Queensland is not, in my view, inherently a different problem from the maintenance of the roads in other parts of Australia. No sound reason was advanced for thinking that wear and tear caused by traffic on a road in Queensland differs substantially from that caused by the same amount of traffic on a road of similar construction elsewhere in Australia. And there is no reason for supposing that roads bearing the same traffic, measured in ton miles, should be a lower standard in Queensland than elsewhere, or that the cost of proper road maintenance in Queensland is substantially different from elsewhere. Statistics as to amounts spent in the past on road maintenance in different places seem to me to be only remotely relevant. And, for reasons made clear during the argument in this case, the statistics tendered do not provide any basis for comparing the cost of proper road maintenance in different places. I need add nothing further to what I have said in Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 on this aspect (at p474)

2. As to the other point : a liability is imposed uniformly on both inter-State and intra-State carriers to pay the charge imposed by The Roads (Contribution to Maintenance) Acts. Some intra-State carriers may, by reason of having paid this charge, be relieved of a liability to pay for permits to use certain roads in Queensland for certain purposes in connexion with intra-State carriage. Thus The State Transport Facilities Act might, it is said, be so administered that an inter-State carrier who wished to engage also in intra-State carriage would be at a disadvantage in doing so in comparison with an intra-State carrier. But this is not, of itself, an impediment to him in his inter-State trade. The need to obtain permits to carry goods by road is for many people alien to their idea of a public road. The tradition of the common law that all the King's subjects have a right to travel on the King's highways and, generally speaking, to use them for the passage of their vehicles and the carriage of their goods makes it hard for many people to accustom themselves to permits and licences. But the States may modify the old law concerning highways and impose restrictions on the use of their roads for intra-State carriage, so long as they do not impair the freedom of inter-State trade ; and that, for reasons given more fully in other judgments, is not the case here. (at p475)

3. I agree that the appeal should be dismissed. (at p475)

ORDER

Appeal dismissed with costs.