Allwrights Transport Ltd v Ashley [1962] HCA 1; (1962) 107 CLR 662 (9 February 1962)

HIGH COURT OF AUSTRALIA

ALLWRIGHTS TRANSPORT LTD. v. ASHLEY [1962] HCA 1; (1962) 107 CLR 662

Constitutional Law (Cth)

High Court of Australia
Dixon C.J.(1), McTiernan(1), Kitto(1), Taylor(2) and Windeyer(1) JJ.

CATCHWORDS

Constitutional Law (Cth) - Freedom of trade, commerce and intercourse between Northern Territory and States - Statute imposing charge on commercial goods vehicles using public highways in Queensland - Validity - Highway maintained as to half by Commonwealth. - The Constitution (63 & 64 Vict. c. 12), s. 109 - Northern Territory (Administration) Act 1910-1955 (Cth), s. 10 - The Roads (Contribution to Maintenance) Acts 1957 to 1958 (Q.), s. 8(1) (e).

HEARING

Brisbane, 1961, September 6-8;
Sydney, 1962, February 9. 9:2:1962
APPEALS from the Court of Petty Sessions, Brisbane, Queensland.

DECISION

The following written judgments were delivered:-
DIXON C.J., McTIERNAN, KITTO AND WINDEYER JJ. This proceeding is an appeal offences under s. 8 (1) (e) of The Roads (Contribution to Maintenance) Acts 1957 to 1958 (Q.). Somewhat irregularly a single notice of appeal was filed to cover all four convictions. The appeal was brought directly to this Court because the nature of the defence set up means that the prosecutions fell under federal jurisdiction. The defendant in fact relied upon s. 10 of the Northern Territory (Administration) Act 1910-1955 and the decision of this Court in Lamshed v. Lake [1958] HCA 14; (1957) 99 CLR 132 upholding the constitutional validity of the provision as a law of the Commonwealth operating within the States according to its tenor. Section 10 provides that trade, commerce and intercourse between the Northern Territory and the States, whether by internal carriage or ocean navigation, shall be absolutely free. (at p666)

2. Section 8 (1) (e) of The Roads (Contribution to Maintenance) Acts 1957 to 1958, under which the appellant was convicted, provides that every person who fails to pay to the Commissioner for Transport, as required by that Act, any charges payable in respect of any vehicle shall be guilty of an offence against the Act. The Act requires the owner of every commercial goods vehicle to pay to the Commissioner, towards compensation for wear and tear caused thereby to public highways in Queensland, a charge at a rate consisting of one-third of a penny per ton of the sum of - (a) the tare weight of the vehicle ; and (b) forty per centum of the load capacity of the vehicle per mile of public highway along which the vehicle travels in Queensland. The defendant maintains that in the application of the provisions to traffic between the Northern Territory and the State of Queensland there is an inconsistency between these State provisions and s.10 of the Northern Territory (Administration) Act 1910-1955 and that the State provisions are accordingly invalid to that extent under s. 109 of the Constitution. In their application to inter-State trade the same provisions have been held valid notwithstanding s. 92 of the Constitution : Boardman v. Duddington [1959] HCA 64; (1959) 104 CLR 456 . This decision applied the case of Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 which upheld in its application to inter-State traffic the corresponding legislation in New South Wales, viz. The Road Maintenance (Contribution) Act 1958. Some observations were made in that case (1959) 102 CLR, at p 295 about the characteristics of the Act which, as against the prima facie presumption which would arise from the bare imposition of a charge in the form of a tax, raised a counter-presumption that the charge possessed a foundation bringing it within the doctrine explained in Armstrong's Case (No. 2) (1957) 99 CLR 28 . The observations were followed by the statement that no material before the Court weakened or overturned the counter-presumption, which should therefore be acted upon. In the present case two arguments were put forward. The first was that because of the concern, financial and otherwise, of the Commonwealth in the highway which is the subject of this case, the effect of s. 10 of the Northern Territory (Administration) Act 1910-1955 upon the State charge could not be governed by the same considerations as had been applied under s. 92 to highways in general in Queensland by the decision in Boardman v. Duddington [1959] HCA 64; (1959) 104 CLR 456 . The second was that facts were established which would make it right to treat the counter-presumption referred to in that case and in Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 . as overturned. The possibility of sustaining this second ground has, since the argument, been negatived by the decision of the Court in Breen v. Sneddon ; Martin v. Sneddon (1961) 106 CLR 406 . In view of that decision no more need be said as to that ground for appealing against the convictions. (at p667)

3. As to the other contention it is necessary to say something about the facts, although perhaps very little. The four offences alleged were committed in failing to pay the charge in connexion with journeys upon Barkly Highway from the Northern Territory to Mt. Isa. The vehicles were owned by the defendant company and ran from Alice Springs upon the Barkly Highway through Camooweal in Queensland to Mt. Isa. It is substantially the only road from Alice Springs and other places in the Northern Territory to Queensland. Half the cost of maintaining the road, so far as it lies in the State of Queensland, is paid by the Commonwealth, that is, by a contribution to the State authorities. From Mt. Isa a road goes on to Mary Kathleen and thence to Cloncurry, but it is said that in effect the Barkly Highway is not a connected part of the road system of Queensland. The defendant's vehicles form part of the service of the Territory Transport Association and it is said that the vehicles forming that service constitute half the traffic on the Barkly Highway in Queensland. The charges payable by them are known and from that starting point the total of the charges payable by all the transport traffic is estimated. When the total is compared with the expenditure upon the Highway in the relevant period, it shows, so it is said, that ten times more is collected than is expended on that isolated part of the Queensland system and it is argued that it should be dealt with separately and upon its own basis. The fact, moreover, should be taken into account that half the expenditure is contributed by the Commonwealth. Thus, so the argument runs, charges are levied upon traffic confined, so far as Queensland is concerned, to the Barkly Highway, and the quantum levied exceeds many times what would be a fair contribution to the cost to the State of the wear and tear involved and the consequent upkeep of the Highway. The defendant contends that to compel it to bear such charges must be an impairment of the freedom of carriage between the Territory and Queensland which s. 10 of the Northern Territory (Administration) Act confers. The answer is that there is no warrant for dealing with the subject as if the Barkly Highway must be treated in isolation and as separated from the rest of Queensland. That Highway may not be linked up with the general system of roads by any highways or roads which could carry the traffic of the Territory Transport Association. But that is not the relevant consideration ; nor is it a relevant consideration that the contribution of the owners of transports using that Highway exceeds the cost of its upkeep. What matters is that a rate is adopted by the State law for the whole of Queensland and the rate so adopted has a reasonable relation to the upkeep of the roads of the State and is expended only upon the maintenance of highways, using the word "maintenance" in the widest sense. The charge is imposed by a State law of general operation, of which the purpose and the content is definitely limited so that it is directed, so to speak, to the upkeep, maintenance and repair of State highways and the levying of a charge therefor which aims at uniformity of incidence. The validity of its application to inter-State commerce has depended on the question whether such a thing, considered as a whole, is inconsistent with freedom of inter-State commerce : not whether this or that carrier of goods or the users of this or that highway, considered separately and in their particular circumstances, obtain a full return for what they pay by way of charge or whether the State Government receives from them, regarded as separate individuals, more money than it spends to cover their particular needs or to repair the wear and tear for which they may properly be held responsible : still less is a particular contribution of money made by the Commonwealth to be taken into account. Breen v. Sneddon (1961) 106 CLR 406 and the decisions preceding it really cover the argument and make it no longer tenable. (at p669)

4. The appeal or appeals should therefore be dismissed. (at p669)

TAYLOR J. In my view the decision in Breen v. Sneddon [1961] HCA 67; (1961) 106 CLR 406 following upon Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 CLR 280 and Boardman v. Duddington [1959] HCA 64; (1959) 104 CLR 456 - is fatal to the appellant in this case. I should add that I agree that the particular matters which were relied upon by the appellant in relation to the Barkly Highway furnish no basis upon which the present case can be distinguished from the earlier cases. (at p669)

ORDER

Appeals dismissed with costs.