Breen v Sneddon [1961] HCA 67; (1961) 106 CLR 406 (13 November 1961)

HIGH COURT OF AUSTRALIA

BREEN v. SNEDDON [1961] HCA 67; (1961) 106 CLR 406

Constitutional Law (Cth)

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

CATCHWORDS

Constitutional Law (Cth) - Freedom of inter-State trade commerce and intercourse - State statute imposing a road charge on owners of vehicles - Decision by High Court that statute valid - Summary proceedings for contravention of statute - Evidence of relation of charge to wear and tear on roads and costs of maintenance - Whether admissible - Reasonableness of charge - The Constitution (63 & 64 Vict. c. 12), s. 92 - Road Maintenance (Contribution) Act, 1958 (N.S.W.), s. 10 (1) (e).

HEARING

Melbourne, 1961, May 31, June 1;
Sydney, 1961, November 13. 13:11:1961
APPEALS from the Court of Petty Sessions at Redfern, New South Wales.

DECISION

November 13.
The following written judgments were delivered:-
DIXON C.J. These are two appeals heard together against two separate Act, 1958 (N.S.W.). The defendant Breen and the defendant Martin were charged separately in respect of independent vehicles under that provision. Section 10(1) provides that any person who . . . (e) fails to pay to the Commissioner for Motor Transport as required by the Act any charges payable in respect of any vehicle shall be guilty of an offence against the Act. In each case an information alleged that the defendant did fail to pay to the Commissioner charges payable in respect of a commercial goods vehicle (specifying it) as required by the Act, the charge being a certain sum for mileage travelled along public streets in New South Wales by such vehicle during the month of January 1959. In each case the facts were that the defendant was the owner of a motor vehicle consisting of a prime mover and trailer which in January 1959 carried goods between Sydney and Melbourne exclusively in the course of and for the purposes of inter-State trade. He did not pay the charges which under the provisions of the Act, if validly applying, would be payable in respect of so much of the inter-State journeys as took place in New South Wales. He was prosecuted before a Court of Petty Sessions for his failure to pay the charges and upon the hearing of the charge - the two cases being heard together - his counsel relied as a defence upon s. 92 of the Constitution. (at p410)

2. In Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 this Court held that the Road Maintenance (Contribution) Act, 1958 validly applied to owners of goods vehicles engaged in inter-State trade. The decision followed the decision of the Court in Armstrong v. State of Victoria (No. 2) [1957] HCA 55; (1957) 99 CLR 28 upon the parallel statute of Victoria and applied it to the Act of New South Wales. (at p410)

3. Prima facie it would seem that in face of the decision in Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 no defence under s. 92 could be open. Counsel for the defendants, however, proposed to offer evidence to the magistrate with a view to proving certain matters of a general description which, he said, would make it appear that the imposition of the charge specified by the Act was necessarily inconsistent with the freedom of the inter-State trade in which his clients had engaged. What, he said, he desired to call evidence to prove was that the charge bore no relation to the wear and tear involved upon the road. Among other reasons, he gave the following: the charge was based on load capacity; heavier vehicles as such did not necessarily cause more damage to roads than vehicles of lighter loads; the damage might be related to wheel loads and into that entered such factors as tyre pressures, distribution of load over the road surface, speed and speed limitations. Petrol tax, he contended, must be taken into account in considering whether the charge was prohibitory as well as other commercial or economic factors which he specified. Other matters upon which he relied seemed less to depend on fact than general reasoning, such as that the Act applied only to commercial vehicles and moreover did not affect vehicles of the Commonwealth or of the State Governments, that inter-State journeys formed but a small proportion of the total traffic in New South Wales, and that as to weather and speed as factors in attrition and determination, no calculation was possible. (at p410)

4. The magistrate declined to admit the evidence proposed. What proofs could have been advanced if the magistrate had allowed it is a question about which one may well be sceptical. However these appeals are based upon the ground that the magistrate ought to have allowed the adduction of the evidence and determined the validity of the imposition of the charges upon inter-State operations by reference to that evidence and not upon the authority of the decision of this Court in Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 (at p411)

5. Certain distinctions must be clearly maintained in dealing with the contention of the appellants. One of them of importance is really very obvious. It is the distinction between, on the one hand, ordinary questions of fact which arise between the parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law and, on the other hand, matters of fact upon which under our peculiar federal system the constitutional validity of some general law may depend. Matters of the latter description cannot and do not form issues between parties to be tried like the former questions. They simply involve information which the Court should have in order to judge properly of the validity of this or that statute or of this or that application by the Executive Government of State or Commonwealth of some power or authority it asserts. In Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 the following passage in what I said deals with the question: "Highly inconvenient as it may be, it is true of some legislative powers limited by definition, whether according to subject matter, to purpose or otherwise, that the validity of the exercise of the power must sometimes depend on facts, facts which somehow must be ascertained by the court responsible for deciding the validity of the law. In Griffin v. Constantine [1954] HCA 80; (1954) 91 CLR 136 , in order to decide the validity of the law there impugned some knowledge was necessary of the nature and history of methylated spirits but it was considered proper to look at books to obtain it. In Sloan v. Pollard [1947] HCA 51; (1947) 75 CLR 445, cf, at pp 468, 469 facts were shown about arrangements between this country and the United Kingdom which gave constitutional validity to an order. In Jenkins v. The Commonwealth [1947] HCA 41; (1947) 74 CLR 400 the validity of the statutory instruments was upheld on evidence as to the place of the mineral mica in electronic devices used in naval and military defence. There is no need to multiply examples. All that is necessary is to make the point that if a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity (1959) 102 CLR, at p 292 ". (at p412)

6. Another matter in which confusion must be avoided arises from the tendency to employ the word "reasonable" as a description of a test to which the charge must conform. It would be quite erroneous to suppose that something like a quantum meruit is involved. Because of its associations and ambiguities it would be better perhaps to avoid the use of the word in connexion with the consistency of a load charge with s. 92. Perhaps it is enough to repeat the following passage from Armstrong's Case (No. 2) [1957] HCA 55; (1957) 99 CLR 28 : "The charge moreover must be a genuine attempt to cover or recover the costs of upkeep. It may of course be arrived at by a pre-estimate; and an ex post facto discovery of error in the pre-estimate will not necessarily mean that the pre-estimate was not genuine. When in respect of the amount of the charge it is said that it must be reasonable that means reasonable in relation to its nature and purpose. If a ton mileage rate is in question it must be reasonable as a proportionate contribution made by the description of vehicle by reference to which the contribution is fixed, that is to say a proportionate contribution to the recovery of those costs of upkeep the bearing of which by the traffic cannot be said to impair the freedom of inter-State transport. Obviously a State cannot single out inter-State transport from transport generally for a particular charge" (1957) 99 CLR, at pp 46, 47 . (at p412)

7. In the third place it is important to understand that a decision of this Court that a statute is constitutionally valid or has a constitutionally valid application to inter-State transportation is as much a binding precedent when the Court in reaching the decision did take factual information into account as if it had proceeded wholly by reasoning in the abstract. It is for the Court to say whether factual information is required before it can or will decide on the constitutional validity of a law or of its application to a given situation. But once it has decided that a law is valid or that a given application of the law may validly be made, that decision will bind other courts as a precedent governing the question until for good reason shown this Court reviews its decision or the decision is otherwise overruled. (at p412)

8. In Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 this Court undertook a full consideration of the validity of the relevant provisions of the Road Maintenance (Contribution) Act, 1958 (N.S.W.) and of their application to inter-State transportation of goods. The Court decided in favour of validity without calling for any further information of a factual character. It is not, in these circumstances, for an inferior court like that of the magistrate in hearing the information in these cases to receive evidence of facts, or otherwise to seek or acquire further factual information which might be considered material to the validity of the provisions upheld by the Court in their application to inter-State trade, commerce and intercourse. It is this consideration which governs the fate of the present appeals. The magistrate was perfectly right in refusing to receive the evidence proposed. On that simple ground his decision should be upheld. (at p413)

9. It may be added that in these proceedings nothing has appeared which would lead us to reconsider the decision in the case of Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 even if an attempt were made, by a direct attack before us, to induce us to reopen it. I am quite alive to the consideration that in that case I qualified my statement of my conclusion by a reference to "the materials before the Court". For example I said "it seems to me that on the materials before the Court the validity of the charge in its intended operation on inter-State journeys ought in point of law to be sustained" (1959) 102 CLR, at p 295 . Further in enumerating the indicia of validity in its application to inter-State carriage which the legislation displays I referred to the absence of evidence and material weakening the counter-presumption against the conclusion that the charge amounted to a bare tax. But by these references it was not intended to throw it open to every tribunal of fact, be it judge be it jury or be it magistrate, to examine or try as an issue of fact the existence of any of the considerations which this Court had adopted as tests of the validity of the operation of the legislation upon inter-State carriage. It would be impossible to administer the law on such a footing. The qualification was thought desirable because the duty rests upon this Court of preserving the freedom of inter-State trade, commerce and intercourse from impairment by the imposition of a tax even when the imposition is under cover of a charge ostensibly conforming with the tests laid down in Hughes and Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 ; Armstrong v. State of Victoria (No. 2) [1957] HCA 55; (1957) 99 CLR 28 and now Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 and Boardman v. Duddington [1959] HCA 64; (1959) 104 CLR 456 . An ostensible or outward conformity with all the tests laid down in those cases could, I think, conceal only with great difficulty a recourse in substance to a tax infringing upon any true conception of freedom. But to quote from Commonwealth Freighters Pty. Ltd. v. Sneddon (1959) 102 CLR 280 : "This Court bears the ultimate responsibility of preserving the freedom of inter-State trade commerce and intercourse from encroachments and impairments and it would be unwise to view without misgiving the possibility of States, under cover of the judgments of the majority of the Court in Hughes and Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 and in Armstrong's Case (No. 2) [1957] HCA 55; (1957) 99 CLR 28 , levying taxes involving an impairment of that freedom as those judgments seek to define it" (1959) 102 CLR, at p 293 . That, however, does not mean that a decision having been reached by this Court as to the validity in its application to inter-State carriage of a State Act, it can be ripped up every time there is a prosecution under the provisions of the Act. (at p414)

10. From the foregoing it follows that these appeals should be dismissed. (at p414)

KITTO J. In much that has been written in earlier cases concerning statutory charges in relation to the use of roads in inter-State trade, commerce and intercourse I have found myself unable to agree, for reasons which I have tried to make clear on more occasions than one. In the present appeals, it is necessary to put aside my own views and seek a solution of the problem before us on the footing that, as a matter of positive law, the provisions as to charges of the Commercial Goods Vehicles Act 1955 (Vict.), the Road Maintenance (Contribution) Act, 1958 (N.S.W.) and The Roads (Contribution to Maintenance) Acts, 1957 to 1958 (Q.) validly apply to the use of roads in inter-State journeys. The decision on the Victorian Act is Armstrong v. State of Victoria (No. 2) (3), and the decision on the Queensland Acts is Boardman v. Duddington [1959] HCA 64; (1959) 104 CLR 456 . I include the New South Wales Act notwithstanding that in the reasons given in relation to that Act in Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 , there is much to support the contention of the present appellants that no more was upheld, so far as the application of the Act to inter-State journeys was concerned, than the presumptive validity of its provisions. I do so because I have come to the conclusion that when all the cases are read together they may and should be assigned to a category governed by a single underlying proposition, the application of which to the New South Wales Act spells the absolute, and not only the presumptive, validity of its charging provisions in relation to inter-State journeys. (at p415)

2. The difficulty I have found in the present appeals may be due in part to the fact that the reasoning employed in the series of cases referred to has not appeared to me completely uniform. It has seemed to vary to some extent, from judge to judge and from case to case, though how far the variations have been in essential ideas or only in methods of expressing or explaining ideas may be a question. But I think that the result has been to require the recognition of a class of legislation which, though it makes an exaction from a person in respect of his use of roads in inter-State journeys, yet leaves him in unimpaired enjoyment of the freedom of inter-State travel and transportation which s. 92 of the Constitution decrees. The conception that there is a category of legislation which may bear upon inter-State trade, commerce and intercourse without diminishing its freedom has long been accepted, and its rational basis is clear although its limits have not been, perhaps because they cannot be, defined with precision. At its base lies the proposition that s. 92 creates freedom and not anarchy. It creates freedom for participation in activities of the specified descriptions within a community organized by law; and it therefore presupposes laws of the kind which may be described (if I may repeat earlier words of my own) as circumscribing an individual's latitude of conduct in the interests of fitting him into a neighbourhood - a society, membership of which entails, because of its nature, acts and forbearances on the part of each by which room is allowed for the reasonable enjoyment by each other of his own position in the same society. My dissent in Hughes and Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 from the adumbration by other members of the Court of the doctrine as to road charges which has been developed in later cases went largely upon what I regarded as a crucial distinction between, on the one hand, laws thus operating as part of the framework within which s. 92 takes effect and, on the other hand, laws imposing charges for the use of roads. The opposite view has prevailed, and the result, as I see it, has been to establish the latter kind of laws as a species of the former. This necessarily means, I think, that all the careful attention which has been given in the cases on road charges to a scrutiny of the legislation to discover whether it exhibits any or all of a number of features regarded as indicia of compatibility with s. 92, has been in truth aimed, not at the question of the severity with which the charges bear upon inter-State road users as if that were the ultimate question upon which the conclusion should hang, but at the question whether the legislation imposing the charges is of a kind which s. 92 assumes may exist as part of the legal context within which the freedom is to exist. In dealing with a different species of law forming part of that context I said in Greutner v. Everard [1960] HCA 33; (1960) 103 CLR 177, at p 188 that the class of laws which, though placing restrictions or other burdens upon individuals engaged in inter-State trade, commerce or intercourse, yet do not detract from the freedom of the individual's inter-State trade, commerce or intercourse itself, is distinguished not by the lightness of the burdens imposed, but by the nature of the laws that impose them. To this I adhere, and it seems to me that the Court's consideration of road charges has developed to a point at which it is possible to see that, as it is their nature that thus distinguishes the general class of laws to which I was referring in Greutner v. Everard [1960] HCA 33; (1960) 103 CLR 177 , so it is their nature that distinguishes in particular the laws which validly impose charges for the inter-State use of roads. What should now be accepted as established is, I think, that a law imposing a road charge is outside the overruling operation of s. 92 if it is in truth and in substance a law for the exaction of a recompense or compensation for wear inflicted upon roads by their use - as Fullagar J. expressed it in Commonwealth Freighters Pty. Ltd. v. Sneddon (1959) 102 CLR, at p 296 , a contribution towards expenditure necessitated by the activities of those who use public highways. I would respectfully accept Fullagar J.'s objection to the suggestion of an analogy with a charge for the use of a facility which a State provides without legal obligation. Presumably a State may charge what it likes for the use, even by inter-State travellers or carriers, of wharves, or of landing grounds, or of railways, or of anything else in respect of which it may, by virtue of ownership or otherwise, exclude persons at will consistently with s. 92. But as Fullagar J. said, persons travel as of right on a public highway; and it has been in consequence of the Privy Council's decision in Hughes and Vale Pty. Ltd. v. State of New South Wales (No. 1) (1955) AC 241; (1954) 93 CLR 1 , namely the decision that s. 92 prevents a State from excluding at will inter-State users from the roads which for the time being are public highways, that a doctrine has arisen with respect to such roads which has to do with recompense or compensation and not with reward. (at p416)

3. The conclusions above expressed necessarily mean that reasonableness of amount is not the criterion of the compatibility of road charges with the freedom declared by s. 92. If it were, there would have had to be in each case that has arisen a comparison of the cost of repairing actual damage done with the amount payable in respect of the use which caused that damage; and such a comparison has never been held necessary. With respect to the statutory restriction in the interests of safety which was under consideration in Greutner v. Everard [1960] HCA 33; (1960) 103 CLR 177 , I expressed the opinion that although, for the purpose of determining whether a law is of a description which s. 92 assumes may have effect, considerations of the need for the law or of its reasonableness may conceivably be relevant in some circumstances, yet "once the description is found to apply it cannot matter . . . whether the restriction appears necessary or reasonable, large or small, regarded either generally or in relation to the circumstances of a particular case" (1960) 103 CLR, at p 188 . So here, it seems to me, although the quantum of a charge may be material in considering the question of the nature of the law which imposes it - for the amount may by its very magnitude suggest the answer - there can be no materiality in a comparison of the charge with the actual or probable costs of road restoration or maintenance, or to any other measure of the damage done by the impact of traffic upon roads; because once the nature of the law has been determined, there is no remaining question for which an opinion as to the reasonableness or unreasonableness of the charge can have significance. And the nature of the law appears when its legal operation is ascertained by consideration of its terms in the light of the fixed objective facts of the situation in which the substance of its provisions has been determined upon and its language chosen. (at p417)

4. Accordingly it seems to me that the evidence the magistrate rejected in the cases now before us was not material to any issue he had to decide. I would draw no distinction as regards admissibility between the evidence which the magistrate might admit and that which this Court might admit. Evidence relevant to the nature of the provisions imposing the charges (assuming that there could be such evidence) would in my opinion have been admissible before the magistrate no less certainly than in this Court, although the magistrate would have been bound to follow the decision in Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 and to leave it to this Court to say, with the aid of the evidence, whether that decision should be reconsidered. But the evidence that was tendered here could have no relevance to the nature of the provisions, and for that reason I would hold that its rejection was right. I agree that the appeals should be dismissed. (at p418)

TAYLOR J. These appeals from convictions before a magistrate for offences against s. 10 (1) (e) of the Road Maintenance (Contribution) Act, 1958. The offence alleged in each of the two informations was that of failing to pay to the Commissioner for Motor Transport the charges payable in respect of a commercial motor vehicle for mileage travelled along public streets in New South Wales during the month of January 1959. No question arises as to whether the terms of the sub-section were contravened but, on the hearing before the magistrate, an attempt was made by the appellants to adduce evidence of the general character described in the reasons of the Chief Justice in order to establish that the provisions of the Act could not validly apply to their vehicles engaged exclusively, as they were, in trade, commerce and intercourse among the States. This evidence, it was said, would, if admitted, have established that the ton mile rate which the Act purports to impose upon vehicles so engaged bears no relation to the wear and tear which such vehicles cause to the highways. This is so, it is said, because the charging formula takes no account of axle loading, speed, number and size of tyres, tyre pressures and a number of other factors which were said to be relevant to an enquiry whether the charges in question offend against the provisions of s. 92. The evidence was rejected but the appellants challenge this ruling and rely upon observations made in earlier cases in which the limits of legislative action in this field were discussed and explained. In Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 where a majority of this Court, after agreeing with the proposition that "it is right to begin with the presumption that to levy a compulsory contribution to the revenue of the State is a tax and if it is laid upon the transportation of goods from one State to another it is inconsistent with s. 92 of the Constitution" (1959) 102 CLR, at p 295 , went on to say that enough appeared in the Act to raise "a counter-presumption that the charge possesses a foundation bringing it within the doctrine explained and adopted in Armstrong's Case (No. 2) [1957] HCA 55; (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 " (1959) 102 CLR, at p 295 . "No material", it was said, "before the Court weakens or overturns that counter-presumption and we should act on it and uphold the validity of the application to inter-State journeys of the Road Maintenance (Contribution) Act, 1958 (N.S.W.) in its material provisions" (1959) 102 CLR, at pp 295, 296 . The same approach was employed in Boardman v. Duddington [1959] HCA 64; (1959) 104 CLR 456 concerning the provisions of The Roads (Contribution to Maintenance) Acts 1957 to 1958 (Q.). In the earlier case of Armstrong v. State of Victoria (No. 2) [1957] HCA 55; (1957) 99 CLR 28 evidence was put before the Court in order to establish, if possible, that the like rate of charge which the Victorian Act imposed was reasonable and, in some measure at least, the evidence was thought by the majority of the Court to confirm the impression which a consideration of the statutory provisions alone created. No such evidence, however, was before the Court in Commonwealth Freighters Pty. Ltd. v. Sneddon (1959) 102 CLR 280 and in Boardman v. Duddington [1959] HCA 64; (1959) 104 CLR 456 the evidence which was adduced was not thought to be of any significance. In the latter case it was said: "It seems a natural inference that New South Wales and Queensland adopted the same rate of contribution to road maintenance because it had been upheld. The conception which in Hughes and Vale Pty. Ltd. v. State of New South Wales (No. 2) [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" (1959) 104 CLR, at p 465 . (at p419)

2. The difficulty in the present case, as I see it, follows from the manner in which the criterion of validity has been formulated from time to time. No doubt, many of the indicia which will give rise to a counter-presumption of the character referred in the passages just quoted may arise upon an examination of the impugned legislation itself. But it is difficult to see how an issue of fact can be excluded when the attack on the legislation rests wholly, or partly, upon the claim that the amount of the charge is unreasonable or excessive. In such a case an issue of fact must inevitably arise and evidence in some form or other must be admissible to enable it to be determined. But I am by no means clear whether the criterion, as first stated as a new concept in Hughes and Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 has developed to the stage where mere proof that the charge itself is unreasonable in fact is sufficient to invalidate the legislation if, upon its face, the legislation is capable of being regarded as an attempt to impose a reasonable charge. But, even if it has, it seems to me that the tendering of evidence to show that a specified charge is unreasonable because it is unrelated to actual wear and tear may well constitute one step in an attempt to displace the counter-presumption which might otherwise be thought to arise. (at p420)

3. However, in the present case we are not concerned with restating or clarifying the criterion of validity or with defining the limits of the evidence which may be admissible upon any relevant issue of fact; what we have to determine is whether any issue of fact concerning validity was open before the magistrate. (at p420)

4. On this aspect of the matter it should be pointed out at once that the case is entirely different from those cases where the constitutional validity of a statute depends upon the existence of a publicly and commonly recognized state of affairs. If the criterion of validity does, as I think, permit an issue of fact to be raised as to the reasonableness of the charge, it is one which can be resolved only by the consideration of evidence tendered and considered in the ordinary processes of litigation. But it would be most inappropriate if such an issue should be constantly open for decision in litigation between private individuals. Nor would it, in my view, be appropriate to entertain such an issue in summary proceedings before magistrates at the instance of a police officer or of a transport inspector. What must be borne firmly in mind is the fact that the problem is one concerning the validity of a statute and no determination of the relevant issue of fact in any such proceedings could be regarded as conclusive against the State, as a vitally interested party, upon any such issue. In the result, therefore, the decision in any such proceedings could not operate, finally, to conclude the question of validity. Nor, would it be practicable to treat any such decision merely as determining the question of validity as between the immediate parties to such proceedings. For, if it could be so regarded, the issue might be raised day after day and a different conclusion reached accordingly as the evidence or the credibility of the witnesses varied or, indeed, according to the zeal of, or the information at the disposal of, the parties. In my opinion, any issue of fact relevant to the validity of the charging provisions of the Act ought to be determined only in proceedings instituted for that purpose and to which the State is a party. Accordingly, I take the view that the issue of fact which the appellants desired to litigate in the proceedings before the magistrate was not open. That being so I am of the opinion that the appeals should be dismissed. (at p421)

MENZIES J. In Armstrong v. The State of Victoria (No. 2) [1957] HCA 55; (1957) 99 CLR 28 , the validity of the Commercial Goods Vehicles Act 1955 (Vict.), which was impugned as contrary to s. 92 of the Constitution, was established in an action in this Court where evidence for the plaintiffs and the defendants was admitted which, upon the whole, was regarded by the majority of the Court as reinforcing the conclusion derived from an examination of the Act itself that it was a real attempt to fix compensation for wear and tear on roads caused by heavy vehicles. In Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 , Armstrong's Case [1957] HCA 55; (1957) 99 CLR 28 was unanimously treated as authority for the validity of the corresponding New South Wales legislation (viz., the Road Maintenance (Contribution) Act, 1958) in an appeal arising out of the proceedings before a magistrate in which there was no evidence for either party of the kind that had been admitted in Armstrong's Case [1957] HCA 55; (1957) 99 CLR 28 .This was an express decision that the New South Wales Act did apply to owners of vehicles used in inter-State trade and that so applying it was not in contravention of s. 92. In the proceedings giving rise to these appeals it was sought by the appellants, who were prosecuted before a magistrate for failing to pay the charges imposed by the New South Wales Act, to prove facts to show that the Act could not validly apply to vehicles being used in inter-State trade. In other words, it was sought by the introduction of evidence to prove facts to show, contrary to the decision of this Court in Commonwealth Freighters Pty. Ltd. v. Sneddon, [1959] HCA 11; (1959) 102 CLR 280 that the Act was invalid. The magistrate rejected the evidence and convicted each of the present appellants. The question now is whether the magistrate should have received the evidence that he rejected. (at p421)

2. In my opinion the evidence was properly rejected. In Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 , Kitto J. said: "Although it is only in litigation between parties that the Court may decide whether Commonwealth legislation is valid, it is upon the validity of the legislation in relation to all persons that the Court has to pronounce. The question is whether the legislation forms part of the law of the Commonwealth. Since it is impossible to affirm the validity of a measure upon a particular basis of fact unless that basis of fact can be seen to be common to all persons, it cannot be material, for the purpose of considering validity, to decide an issue of fact which is of such a nature as to admit of different findings in different cases" (1951) 83 CLR, at p 276 . These observations seem to me to apply with compulsive force in the case of proceedings before a magistrate bound by a decision of this Court to hold that the Act which it is sought to impugn is valid. The magistrate could not upon any view of the facts hold the Act invalid or inapplicable to vehicles being used in inter-State trade nor does it seem to me that any so-called findings of fact by a magistrate based upon his view of such evidence as the parties or one of them might adduce relating to the effect of the Act upon inter-State operations could afford any foundation for this Court reviewing its earlier decisions. These decisions determined the character of the legislation in question here rather than its economic effect upon those using commercial vehicles to carry goods inter-State, and although background facts of a general character are necessarily material for reaching such decisions, facts of that character are always for this Court's ultimate determination and once so decided are not open for review in other courts. The earlier decisions of this Court upholding the validity of imposing road charges upon carriers, including inter-State carriers - like the decisions in Greutner v. Everard [1960] HCA 33; (1960) 103 CLR 177 and Sloman v. Howarth [1960] HCA 33; (1960) 103 CLR 177 upholding the imposition of limits upon the height of vehicle and load and the length of the vehicle used upon roads - depend ultimately upon the recognition that the legislation has a character which makes it consistent with s. 92 notwithstanding that for the good of all it imposes obligations or restrictions upon those who remain free to trade. (at p422)

3. The evidence tendered and rejected related, therefore, to nothing in any way material to any decision that the magistrate had to make and was properly rejected. (at p422)

4. In my opinion the appeals should be dismissed. (at p422)

WINDEYER J. In Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 I stated my understanding of the law, as this Court has decided it, concerning road charges and s. 92 of the Constitution. It is that imposing a charge or toll upon the users of a facility which is provided and maintained by the State or a public authority to enable trade, commerce and intercourse to be carried on is not necessarily incompatible with the freedom that s. 92 assures. That I think is so whether the facility be a road, a bridge, a ferry, a wharf or an airport, to take the more obvious instances. Such a charge, it has now been held, may be lawfully imposed upon persons engaged in inter-State road transport and traffic if it be: (a) not improper in amount; (b) uniform, in the sense that it does not place a greater burden on inter-State traffic than is placed on intra-State traffic (this was the decisive factor in Pioneer Express Pty. Ltd. v. State of South Australia [1957] HCA 63; (1957) 99 CLR 227 ; and (c) levied for the purpose of maintaining roads, its proceeds being lawfully appliable only for that. (at p423)

2. By a very old rule of the common law - I referred to the authorities in what I wrote in the Commonwealth Freighters Case (1959) 102 CLR, at p 302 - a charge for the purpose of maintaining a road-work such as a bridge, causeway or ferry, could be lawfully levied upon travellers on a highway without, in the eye of the law, impairing the right the King's subjects then had of travelling without hindrance on the King's highways. This doctrine forms part of the historic background against which the words of s. 92 must be read. And, although expressed in old terms, it accords, I think, with a concept that is the basis of the reasoning of the majority of this Court in Hughes and Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 , and in Armstrong v. State of Victoria (No. 2) [1957] HCA 55; (1957) 99 CLR 28 . (at p423)

3. What then is meant by saying that a road charge must be proper in amount? I prefer this expression. I think it suffices, although various terms have been used: "Reasonable recompense", "fair recompense", "contribution to upkeep", "reasonable toll", "reasonable compensation for the average damage done to roads by vehicles carrying average loads", "compensation for wear and tear", are all to be found in judgments. The expressions used are not all harmonious in strict logic. But, however the appropriate tests be formulated, what is, I think, involved in all formulations is that the amount of the charge (if it is to be lawful in respect of inter-State traffic) must have some rational relation to the cost of maintaining roads in a condition fit for the traffic they have to bear; and it must not be, in a practical sense, an impediment. Whether or not it has this character is a question to be decided by this Court. It may decide it on such factual information as it thinks fit. But once a statute is declared by the Court to be valid on the basis of such a decision, that declaration becomes a statement of the law. It is not examinable in other Courts as a question of fact. That is how the matter appears to me. True it is, that the Court has necessarily had to determine a question of law in a way that is not the way in which questions of private law are ordinarily determined. But that is the inevitable result of the Court being required by the Constitution to uphold and apply in varied settings of time and place the wide concepts that s. 92 expresses. (at p424)

4. As I indicated in Boardman v. Duddington [1959] HCA 64; (1959) 104 CLR 456 I do not treat the upkeep or maintenance of roads as a narrow idea. It is not, I think, restricted to the repairing of road surfaces. It extends to road-works generally, to reconstruction by widening and strengthening or otherwise improving the existing road system. It would be impossible to make the validity of a charge depend upon some exact correspondence between the deterioration of a road caused by the passage of particular vehicles and the cost of repairs thereby made necessary, or upon a nice computation of road depreciation. "Wear and tear", the phrase that has been much used, has been criticized. It may be true that erosion by the elements causes more harm than traffic to road surfaces. It may be true that the passage of heavy vehicles having large wheels and wide tyres does not affect the surface of a concrete roadway more than the passage of lighter and smaller vehicles does. But, as I pointed out in Commonwealth Freighters Pty. Ltd. v. Sneddon (1959) 102 CLR, at p 302 , the notion that heavy and unusual traffic causes extra wear and tear upon roads is not new in the history of highway law. And it is not an irrational idea; for although heavy traffic may not wear out some kinds of roads more rapidly than does light traffic, it clearly is a major factor in the total cost of road maintenance. To keep roads suitable for a growing burden of traffic, they, and their bridges and culverts, must from time to time be strengthened and widened, road surfaces must be improved, gradients made less steep. All this is involved in the maintenance of a road system. I do not understand the phrase "wear and tear" as having a limited meaning in this context. (at p424)

5. The New South Wales Act that the appellants sought to challenge in the proceedings before the magistrate in this case had already been upheld by this Court. It imposed a ton-mileage charge; and the Court had held that this was not an invasion of the freedom or an impediment to the freedom of which s. 92 speaks. That decision was arrived at after the Court had had such information concerning the costs of road maintenance as it considered showed the propriety of the charge. The facts given in evidence in Armstrong's Case [1957] HCA 55; (1957) 99 CLR 28 were not, it seems to me, made relevant by an assumption that the actual expenditure by the State of Victoria determined the sum that could properly be recouped by road charges. The relevance of the evidence was rather, I think, that it showed the cost of maintaining a road system to meet current needs. That this evidence was derived from experience concerning that part of the Australian road system that lies in the State of Victoria has been held to be of no significance. The same scale of charges has been upheld for New South Wales and Queensland. There was no reason for thinking that it was not proper there. Indeed to suppose that the Court would have required further inquiry is, I consider, to mistake the significance of the evidence. The effect of s. 92 is to obliterate State boundaries for the purposes of trade, commerce and intercourse. I do not understand how it can be asserted that its result is to etch them in. Once the Court decided, on evidence that it thought sufficient, that a particular charge was proper in amount, because reasonably proportionate to the cost of road maintenance, and had upheld the relevant statute as a valid enactment, the question was concluded for lower courts. The contention that in those courts the question could be reopened by calling evidence is, I consider, to mistake the place that evidence of facts has in the determination of questions of the constitutional validity of a law. (at p425)

6. For these reasons, I agree in the judgment of the Chief Justice. (at p425)

ORDER

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