Ngo Ngo Ha and the High Court V New South Wales: Historical Purpose in History and Law
| Published date | 01 September 1999 |
| DOI | 10.22145/flr.27.3.5 |
| Date | 01 September 1999 |
| Author | Rowan McMonnies |
| Subject Matter | Article |
NGO NGO
HA
AND
THE
HIGH
COURT
V
NEW
SOUTH
WALES:
HISTORICAL
PURPOSE
IN HISTORY
AND
LAW
Rowan
McMonnies*
INTRODUCTION
The
latest
statement
from
the
High
Court
on
duties
of
excise
poses
an
interesting
question
with
regard
to
the
fiscal
relationship
between
Commonwealth and
State
governments.
The
absence
of
fiscal
accountability
in
all
levels
of
government
in
Australia
serves
to
frustrate the
objectives
of
the
federal
system.
While
the
decision
in
Ngo Ngo
Ha
v
New
South
Wales
1
(Ha)
brings
some
clarity
to
a
confusing area, the
High
Court's
adoption
of
a
broad
approach
to
s
90
of
the
Constitution
has
the
effect
of
increasing
the
disparity
between
the
revenue
and
expenditure
of
Commonwealth
and
State
governments.
In
light
of
the
economic
and
political
implications
of
the
decision,
it
must
be
asked
whether
the
correct
purpose
has
been
attributed
to
the
section.
This article
will
attempt
to
identify
the
intention
of
the
framers
of
the
Constitution
in
relation
to
excise
duties
through
an
assessment
of
the
historical
factors
surrounding
Federation.
This
will
be
followed
by
an
analysis
of
the judicial
history
of
s 90,
as
well
as
a
thorough
examination
of
the
Court's approach
in
Ha.
2
In
attempting
to
identify
this
intention,
the
Court's position
with
regard
to
the
purpose
of
the
section
will
be
shown
to
be
inconsistent
with
the
historical
intention.
This
inconsistency
provides
a
foundation
for
an
assessment
of
whether the High
Court
is,
or
should
be,
transcending
its
interpretive
function
to
rectify
the
current
fiscal
imbalance.
Attempting
to
identify the
intention
of
the
framers
of
the
Constitution
in
any
constitutional question
is
like an
application
of
Werner
Heisenberg's
uncertainty
principle;3
the
more
precise
an
answer
one seeks,
the
more unreliable
the
result
becomes.
Many
legal
commentators,
and
even
judges,
have
submitted
that
it
is
impossible
to
determine
a
specific
intention
from the
broad and
often
vague
terminology used
in
the
Constitution.
4
However,
it should
not
be
said
that
the exercise
is
fruitless.
Valuable
insight
into
the
reasoning
behind
the
structure
and
language
of
LLB
(UTS).
This
article
was
prepared
for
the
purpose
of
an honours
research
project.
The
author
gratefully acknowledges
the
contribution
of
Mr
P
Keyzer,
Senior
Lecturer, Faculty
of
Law,
University
of Techmology,
Sydney, for
his
helpful
comments
and
suggestions
in
the
preparation
of
this
article.
I
(1997)
189
Cl R465.
2
Ibid.
3 S W
Hawking,
A
3rieflXistory
of
Time:
From
the
Big
Bang
tI
Black
loles
(1989).
4 C
Caleo,
"Section
90
and
Excise
Duties:
a
Crisis
of
Interpretation"
(1987)
16
MULR
296
at
325.
Federal
Law
Reviewo
the
Constitution
can
be
obtained
from
an
examination
of
the
plethora
of
contemporary
debate
and
commentary
regarding
Federation.
This article
will
attempt
to
piece
together the
intention
of
the
nation's
founding
fathers
in
relation
to
the
inclusion
of
s 90
and
its
operation
in
excluding
the
ability
of
the
States
to
impose
duties
of
customs
and
excise.
Before
an
analysis
of
the
intention
of
the framers
of
the
Constitution
can commence,
it
is
important
to
draw
the distinction
between
seeking
that
intention and
identifying
the
meaning
of
the
words
in
which
the
Constitution
is
expressed.
5
Whilst the
latter
represents
a
legal
analysis
involving
statutory interpretation and
the
balancing
of
competing
interests,
the former
is
more
of
a
historical
inquily that
takes into account
the
factors
leading
up
to
and
including
the federation
of
the colonies,
as
well
as
the
Convention
Debates, the
Constitution
itself
and
early
interpretations
of its
provisions.
The
difficulty
in
attributing
a
singular
purpose
to
the
exclusivity
of
duties
of
excise
is
signified
by
the
unresolved
judicial
confusion
over
the
interpretation
of
s
90.6
In
terms
of
attempting
to
define
the
purpose
of
s
90,
there are
in
fact
three
broad
theories
regarding
the
intention
of
the framers
in
restricting
the
ability
of
the
States
to
impose
excise
duties.
The
first
of
these, and
perhaps
the
most
obvious,
is
the
centralisation
of
tariff
policy.
It
is
argued
that, although the
creation
of
a
customs
union
between
the
colonies
of
Australia
required
the transfer
of
the
exclusive control
over
the
imposition
of
all
customs
duties,
the exclusive
control over
duties
of
excise
was limited
to
those
affecting
tariff
policy.
7
This
reasoning
relies
on
the distinction
between an
excise
imposed
on
the
production
and manufacture
of
goods
and
one
imposed
upon
a
step
in
the
distribution
of
those goods.
The
distinction
is
considered
important
because
unlike
the
former,
an
excise
imposed
upon
a
step
in
the
distribution
of
goods
will
fall
indiscriminately
upon
locally
produced
and
in
orted
goods,
and
as
such,
will
not
have
the
effect of
distorting
national
tariff
policy.
This
narrow
view
of
"excise"
in the
Constitution
has
the
effect of
both
preserving
the
fiscal
autonomy
of
the
States and
ensuring that
the
Commonwealth's
tariff
policies
are
not
undermined.
9
The
second
theory
regarding
the
purpose
of
s 90
involves
a
much
broader
approach.
It
is
assumed
that
the
objective
of
granting
the
Commonwealth
exclusive
power
to
impose
duties
of
excise
was
not
only
to
allow
effective
control
over
tariff
policy,
but
also to
facilitate
a
centralisation
of
commodity
taxes.
1 0
Under
this
principle,
the
Constitution
was
intended
to
grant
the
Commonwealth
"a
real
control over
the
taxation
of
commodities
and
to
ensure
that
the
execution
of
whatever
policy
it
adopted
should
not
be
hampered
or
defeated
by
State
action."
1 1
In
accordance
with
these
aims,
the
term
excise
is
to
be
given
a
wide
meaning,
encompassing
"all
taxes
upon
or
in
5 J
A
Thomson,
"Constitutional
Interpretation:
History
and
the
High
Court:
A
Bibliographical
Survey"
(1982)
5
UNS'WIJ
309
at
309.
6
Philip
Morris
Lid
v
Commissioner
of
Business
Franchises (1989)
167
CLR
399
per
Mason
CJ
and
Deane
J.
7
N
J
Dixon,
"Section
90
-Ninety
Years
On"
(1993)
21
F
L
Rev
228
at
234.
8 Ngo Ngo
Ha
v
New
South
Wales
(1997)
189
CLR
465
at
508
per Dawson,
roohey
and
Gaudron
J.1.
9
P
Hanks, "Section
90
of
the
Constitution: Fiscal
Federalism
or Economic
Unity?"
(1986)
10
Adel
LR
365
at
368.
10
Ibid
at
371.
11
Parton
v
Milk
Board
(Victoria)
(1949)
80
CLR
229
at
260
per
Dixon
J.
Volume
27
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