HIGH COURT OF AUSTRALIA

                                                      Armstrong

                                                           Vs.

                                                The State Of Victoria

    (Dixon C.J.(1), McTiernan(2), Williams(3), Webb(4), Fullagar(5), Kitto(6) and Taylor(7) JJ.)

                                                   30 August 1957

CATCHWORDS

Constitutional Law (Cth.) - Freedom of inter-State trade, commerce and intercourse - State statutes -
Validity - Provision that owners of certain vehicles having more than a specified load capacity shall
pay towards compensation for wear and tear caused to public highways in Victoria a charge at the
rate prescribed in the schedule - Charge of one-third of a penny per ton of sum of tare weight of
vehicle and forty per cent of load capacity per mile of public highway travelled in Victoria - No
indication in statute of how charge of one-third of penny arrived at - Provision for charge to be
applied only to maintenance of public highways - daily record of journeys of vehicle along public
highways in Victoria required to be kept by owner and for forwarding by him within fourteen days
of end of each month record of previous month and amount of moneys owing by way of charges in
respect of that month - Absence of discrimination between vehicles engaged in intra-State and inter-
State trade - Use of evidence in determining validity - Validity of statute imposing charge in
application to vehicles engaged in inter-State trade - Statute providing for payment of substantial
registration fee on registration of vehicles - Including vehicles engaged exclusively in inter-State
trade - Fee quantified by reference to power and weight of vehicle, commercial use and possession
of certain types of tyres - Payment enforced by penalising use on highway of unregistered vehicle -
Validity - The Constitution (63 & 64 Vict. c. 12) s. 92 - Commercial Goods Vehicles Act 1955 (No.
5931) (Vict.), ss. 25-33 - Motor Car Act 1951 (No. 5616) (Vict.), ss. 6, 17.

HEARING

Melbourne, 1957, May 14, 15, 16, 17;Sydney, 1957, August 30. 30:8:1957 ACTION directed to be
argued before the Full Court.

DECISION

August 30.The following written judgements were delivered:-

DIXON C.J. This suit is brought in the original jurisdiction of the Court law affecting the liability to
pecuniary exactions of persons carrying goods in motor vehicles in the course of inter-State trade. In
the first place the validity is attacked of the provisions of Pt. II of the Commercial Goods Vehicle
Act 1955 (No. 5931) of Victoria in so far as those provisions purport to require the owners of
vehicles engaged in inter-State trade to pay a charge. In the second place the validity is attacked of
the provisions of the Motor Car Act 1951 (Act No. 5616) as amended in so far as they purport to
apply to owners operators or drivers of commercial goods vehicles used on highways in Victoria in
the course of inter-State trade and to require the payment of the fees set out in pars. B (b) and (c) of
the second schedule. Since the issue of the writ the second schedule has been replaced by another:
see Act No. 6038. But the attack has been continued on the footing that the substituted schedule
now applies. (at p36)

2. The plaintiffs sue as representative parties. They purport severally to represent groups of persons
all possessing a common interest because they engage in the inter-State carriage of goods, but
grouped according to membership of certain associations. Such a form of representation may be
open to objection but no objection was in fact taken to the constitution of the suit. As it was
constituted not only were the State of Victoria and its Transport Regulation Board named as
defendants but the Chief Commissioner of Police as representing the police force. This seems a
novel and objectionable course, but we are not called on to consider it. (at p36)

3. Except for the allegation that the provisions attacked burdened inter-State commerce the
defendants admitted the facts pleaded in the statement of claim. In justification of the charge under
Pt. II of the Commercial Goods Vehicles Act 1955 of which the plaintiffs complained the defendants
pleaded that the charge is no more than a reasonable recompense or compensation for the use of the
roads in Victoria by the vehicles in respect of which it is imposed or a reasonable contribution to
road maintenance for the wear and tear caused to the roads by such vehicles. An analogous plea was
set up with respect to the fees which the Motor Car Act 1951 as amended was expressed to make
payable on registration. (at p37)

4. Both the sufficiency in law and the correctness in fact of these justifications were put in issue by
the plaintiffs. The parties agreed that a convenient course would be to lead evidence before a single
judge and upon that evidence to have the case argued before the Full Court. The action came on for
trial before Taylor J. accordingly and at the conclusion of the evidence his Honour pursuant to s. 18
of the Judiciary Act 1903-1955 directed the case to be argued before the Full Court upon the
evidence before him. (at p37)

5. At the argument the weight of the attack was directed against the validity of Pt. II of the
Commercial Goods Vehicles Act 1955 although of course ss. 6 and 17 and the material parts of the
second schedule of the Motor Car Acts as affecting inter-State transport of goods did not escape
challenge. (at p37)

6. The provisions of Pt. II of the Commercial Goods Vehicles Act were treated as an attempt by the
Victorian legislature to take advantage of the view expressed in the joint judgment of McTiernan
and Webb JJ. and myself (1955) 93 CLR, at pp 171-179 and in the respective judgments of Williams
J. (1955) 93 CLR, at pp 190-195 and Fullagar J. (1955) 93 CLR, at pp 208-211 in Hughes & Vale
Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 that the freedom
of trade commerce and intercourse among the States which s. 92 assures is not necessarily
incompatible with the States obtaining from inter-State carriers by road some contribution towards
the upkeep of the highways they use. In each of the three judgments mentioned there is a discussion
of the reasons why without impairing the freedom of inter-State trade commerce and intercourse a
State may require inter-State carriers to pay some contribution to the maintenance of the roads used,
and there is a consideration of the nature of, and the limits upon, the charge that might be made.
Kitto J. and Taylor J. adopted the contrary view. Kitto J. expressed his conclusion thus - "Neither in
reason nor upon authority have I found it possible to reconcile the freedom which s. 92 decrees for
trade, commerce, and intercourse among the States with the existence in a State legislature of a
power to make a compulsory levy upon an individual as a condition, or by reason, of his traversing
the roads of the State in the course of an inter-State journey" (1955) 93 CLR, at p 216 . His Honour
proceeded to give reasons for this conclusion, reasons it must at once be admitted which must strike
the mind as possessing prima facie great logical force, deriving as they do from a simple position. It
is the position that whatever restrictions, consistently with s. 92, you may "apply to some
individuals for the sake of others so that their possibly conflicting interests may be mutually
adjusted" (1955) 93 CLR, at pp 218, 219 , you cannot say that if a trader engages in an inter-State
activity he must make a payment of money without moving into a different field; you must deny
that he may enter as of right and make a law having a direct adverse operation upon the activity, in
short burden it with tax. (at p38)

7. It may be said that Kitto J. regarded it as neither logically proper nor practically possible to draw
a distinction between a compulsory charge for the use of the roads as a facility or service and such a
tax. "The whole matter seems to me to come down to this", said his Honour. "A State law imposing
a compulsory levy upon an individual by reference to his use of something belonging to or provided
by the State must necessarily depend upon the existence in the State legislature of one of two
powers: either a power to exclude that individual from that use, or a power to tax him upon that use.
That s. 92 prevents the taxation of inter-State trade, commerce, and intercourse, is obvious. That it
prevents the exclusion of individuals from the use of the public roads in the course of inter-State
trade, commerce, or intercourse, except by a law that is regulatory in the relevant sense of that
word, the Privy Council has conclusively laid down" (1955) 93 CLR, at p 225 . (See Hughes & Vale
Pty. Ltd. v. State of New South Wales (No. 2) (1955) 93 CLR, at pp 216-225 ). (at p38)

8. Taylor J. carried the same reasoning a step further. His Honour dealt with the argument that to
require an inter-State operator to pay for his use of the road was no more than to levy charges for
facilities provided and that "since those operators receive money's worth in return for the payment
of the charges, they are not subjected to any unconstitutional burden" (1955) 93 CLR, at p 238 .
This line of reasoning Taylor J. regarded as containing a fallacy which would appear from a
consideration of the manner in which public revenues may be raised. His Honour first discussed the
raising of revenue for general or special purposes either throughout the State or upon or in relation
to particular persons or classes of persons, and the possibility always of saying broadly that those
paying taxes pay "for services or facilities received, or to be received, or for the carrying out of
public works which they, as members of the community, or of some special class, enjoy or will
enjoy" (1955) 93 CLR, at p 239 . His Honour then expressed his general conclusion as follows -
"Perhaps this conception is more readily recognizable when a tax is levied for a special purpose
upon those persons whose special benefit it is thought the purpose will serve. But whatever course is
adopted the power to levy imposts or taxes is subject to the constitutional limitation which arises
from the terms of s. 92 and it seems clear to me that any impost or tax, or so-called charge, whether
levied upon a limited class for special purposes or by way of contribution to a tax for general
purposes, which is made payable as a condition of engaging in or carrying on inter-State trade, must
offend against s. 92" (1). (See Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) (1955)
93 CLR, at pp 236-240 ). (at p39)

9. The primary case for the plaintiffs is that the views of Kitto J. and Taylor J., which formed part of
the ratio decidendi by which those learned judges reached their judgment in the case, are correct and
that such views should receive effect in the present case. The contrary views expressed by the other
members of the Court, the plaintiffs say, went beyond what was strictly necessary for the decision of
the case and the plaintiffs attack them as erroneous. But the plaintiffs go further and contend that the
provisions contained in Pt. II of the Commercial Goods Vehicles Act 1955 go outside the conditions
which the judgments of the majority of the Court contemplated as essential to the validity of any
charge made upon inter-State carriers for using the roads so that on any view Pt. II cannot be
supported. (at p39)

10. The heading of Pt. II is "Contributions to Road Maintenance". The central provision of the Part
is sub-s. (1) of s. 26 which enacts that the owner of every commercial goods vehicle shall, as
provided by the Part, pay to the board towards compensation for wear and tear caused thereby to
public highways in Victoria a charge at the rate prescribed in the fourth schedule. That schedule
provides that the charge to be paid in respect of every vehicle shall be one-third of a penny per ton
of the sum 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 Victoria. (at p39)

11. A second sub-paragraph of the fourth schedule provides that in assessing the charge fractions of
miles and fractions of hundredweights shall be disregarded, but hundred-weights (in relation both to
tare weight and load capacity) are to be taken into account as decimals of tons. The expression
"commercial goods vehicle" means (as does the word "vehicle" itself) a motor car (together with
any trailer) carrying goods for hire or reward or for any consideration or in the course of any trade
or business: s. 2. There is an immaterial exclusion from the definition. The exclusion is of a primary
producer's vehicle of not more than two tons load capacity when used solely for his business of
primary producer. (at p40)

12. The "board" to which the charge is to be paid is the Transport Regulation Board under the
Transport Regulation Act 1955 (No. 5930). (at p40)

13. Section 25 excludes from the operation of Pt. II vehicles of not more than four tons load
capacity. If a trailer is attached its capacity is included in the measurement. Section 25 also excludes
vehicles used for the carriage of certain commodities. It will be necessary to say more of this later
but for the moment it can be passed by. A definition gives means of readily determining load
capacity: s. 2. (at p40)

14. There are provisions dealing with the enforcement and collection of the charge. The liability to
pay it accrues from the actual use of the road and the amount is quantified by the length in Victoria
of the journey. Payment is not exacted as a condition precedent to carrying the goods or entering
upon or continuing the journey. Sub-section (2) of s. 26 provides that the 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 provided in the Part. Sub-section (3) makes the charge a civil debt due to the board
by the owner of the vehicle and recoverable summarily or in any court of competent jurisdiction.
Failure to pay is also included among the offences which s. 31 creates. Conviction for an offence is
an occasion upon which the court may order payment to the board of any amount which the
evidence shows to be unpaid: s. 32. Records must be kept by the owner of a commercial goods
vehicle of his journeys in Victoria and must be sent to the board together with the amount owing for
charges, subject to any arrangement with the board: ss. 27, 28 and 29. (at p40)

15. Section 30 which consists of two sub-sections is of sufficient importance to set out. It is as
follows: - "(1) All moneys received by the Board by way of charges under this Part shall be paid
into the Country Roads Board Fund to the credit of a special account to be called the 'Roads
Maintenance Account'. (2) Money to the credit of that account shall be applied only on the
maintenance of public highways (including grants to municipalities for that purpose)." (at p41)

16. From the foregoing certain cardinal features of the charge are evident. In the incidence of the
charge there is no distinction between commercial goods vehicles which pass over the border and
those which do not. The rate of the charge is a third of a penny a ton mile calculated on the tare
weight and two-fifths of the load capacity of the vehicle. It applies only to vehicles of more than
four tons load capacity, that is to heavy lorries and the like whose use of the road might be supposed
to make a considerable contribution to the increase of the costs of maintenance. In the next place the
amount of the charge depends on the distance covered in Victoria. Then the proceeds of the charge
must go to the credit of a Roads Maintenance Account formed in the Country Roads Board Fund
and money to the credit of that account must be applied to the maintenance of public highways
either directly or through municipalities. Lastly the charge is according to s. 26 (1) a payment
"towards compensation for wear and tear caused by commercial goods vehicles to public highways
in Victoria". It might be wrong to accept this description of the charge as providing in itself a
demonstrative reason for concluding that the charge is simply compensatory, but it is given
additional force by the requirement of s. 30 (2) that the money shall be applied only to the
maintenance of public highways. The expression "maintenance" is not defined in the statute itself
but the Country Roads Board Fund is an account established in the Treasury by s. 38 of the Country
Roads Act 1928 and s. 14 of that Act contains a definition of the term which would confine the
expenditure to keeping roads in the condition they possessed when constructed, or if a road has
since been improved, in its improved condition. It is a definition which, while not in terms made
directly applicable, shows what the legislature means. (at p41)

17. A matter that is to be noted is that the rate of the charge is uniform and does not vary with the
class of road traversed or with its susceptibilty to damage from the axle load of the vehicle or with
its sufficiency, in point of design, construction or maintenance, to bear the axle load. (at p41)

18. The inquiry whether the charge may be lawfully imposed consistently with s. 92 may
conveniently be divided into tow parts. There is first the question whether there is any description of
charge for using its roads that a State may impose upon transport including inter-State transport
without infringing upon the freedom assured by s. 92. If so, there is then the question whether the
charge now in question is of the permissible description. (at p41)

19. No one can be more alive than I am to the difficulties of the first of these questions but the full
re-examination which the subject has received in the present case has not led me to repent of the
views expressed upon it in the reasons of McTiernan J., Webb J. and myself in Hughes & Vale Pty.
Ltd. v. State of New South Wales (No. 2) (1955) 93 CLR, at pp 171-179 . Accordingly I wish to
begin by incorporating those pages in this judgment by reference. In what follows I shall endeavour
to avoid repeating what they contain. The reasoning there appearing does not however go back to
the more abstract propositions from which Kitto J. begins in stating the grounds of his opinion on
this question in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) (1955) 93 CLR, at p
217 . As will be seen from the citations which his Honour gives, I have long understood the words
of s. 92 in the sense which Kitto J. describes. Any abstract restatement of the meaning of the law is
however exposed to misconstruction and moreover time must disclose that this or that aspect
deserves greater emphasis than was foreseen. In McCarter v. Brodie [1950] HCA 18; (1950) 80
CLR 432, at p 467 I spoke of what I had written in the case of O. Gilpin Ltd. v. Commissioner for
Road Transport and Tramways (N.S.W.) [1935] HCA 8[1935] HCA 8; ; (1935) 52 CLR 189 and to
that I wish only to add that, if that dissenting judgment and the dissenting judgment in Willard v.
Rawson [1933] HCA 12; (1933) 48 CLR 316 have now acquired any authority, what is important
for present purposes to notice is the statement in the latter judgment (1933) 48 CLR, at pp 333, 334
of the doctrine prevailing in the United States with reference to motor transport between States and
the terms in which it is rejected as inapplicable to s. 92. There occurs in the citation the following
passage - "If a statute fixes a charge for a convenience or service provided by the State or an agency
of the State, and imposes it upon those who choose to avail themselves of the service or
convenience, the freedom of commerce may well be considered umimpaired, although liability to
the charge is incurred in inter-State as well as intra-State transactions. But in such a case, the
imposition assumes the character of remuneration or consideration charged in respect of an
advantage sought and received" (1933) 48 CLR, at p 334 . In the judgment in O. Gilpin's Case
[1935] HCA 8; (1935) 52 CLR 189 the fact that the interference must amount to a restriction or
burden is made the first consideration (1935) 52 CLR, at p 204 and by way of example of what is
not a burden the illustration is given of tolls on a bridge (1935) 52 CLR, at p 206 . (at p42)

20. It was not until the decision of the Privy Council in Hughes & Vale Pty. Ltd. v. State of New
South Wales (No. 1) [1954] HCA 61; (1955) AC 241; (1954) 93 CLR 1 that any question could
arise as to the nature or extent of the conception underlying these statements. Now, as it appears to
me, the developments which have occurred in the intervening years show that the conception was
neither sufficiently emphasised nor defined. Indeed the question may perhaps be said to be whether
the conception should be expanded and applied to roads. (at p43)

21. When it is said that a toll upon a bridge, to take the example mentioned, does not burden inter-
State commerce, it does not mean that the payment is not borne by the traffic or that the payment is
so small that its incidence cannot be felt. It means that the payment is of such a kind that it is no
impairment of the freedom of commerce or of movement if you are required to make it. The Air
Navigation Regulations do not impose a burden on inter-State air navigation when they forbid the
use of an aerodrome if it is neither under the control of the Director-General of Civil Aviation nor
licensed by him and when at the same time they require the payment of charges for the use of
aerodromes, air routes and airway facilities maintained and operated by the Commonwealth: (cf.
reg. 89 and 104). Nor do State laws empowering harbour authorities to impose a tonnage rate on
inter-State ships berthing at wharves or a charge upon the goods unshipped necessarily burden inter-
State commerce. (at p43)

22. Although the payments are exacted under the authority of the law from parties engaged in inter-
State commerce who must incur the charges if they are to pursue the inter-State transactions, yet
there is no detraction from the freedom of inter-State commerce. The reason, as I venture to suggest,
simply is that, without the bridge, the aerodromes and airways, the wharves and the sheds, the
respective inter-State operations could not be carried out and that the charges serve no purpose save
to maintain these necessary things at a standard by which they may continue. However it may be
stated, the ultimate ground why the exaction of the payments for using the instruments of commerce
that have been mentioned is no violation of the freedom of inter-State trade lies in the relation to
inter-State trade which their nature and purpose give them. The reason why public authority must
maintain them is in order that the commerce may use them, and so for the commerce to bear or
contribute to the cost of their upkeep can involve no detraction from the freedom of commercial
intercourse between States. It is not because the charges are consensual for plainly they are imposed
by law; if the conditions are fulfilled that the law prescribes, a liability arises. It is not because they
are based on property. Indeed the instruments of commerce in question are public works often
subject to and complicated by a combination of authorities. (at p44)

23. 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 bys. 92
as an infringement of the freedom of trade commerce and intercourse among the States. (at p44)
24. I was never able to share the view that because the State was responsible for providing and
maintaining both railways and roads it was open to the State without impairing the freedom of inter-
State commerce to impose a restraint or control on the carriage of goods or persons by road and so,
as it was called, to "co-ordinate" the passenger or goods traffic between the two. I could not see how
it was consistent with s. 92 whether done by a licensing system or by some other means of
restriction. Now, of course, that proposition has been definitely overruled. But it is one thing to say
that the fact that the State provides the roads does not mean that a restraint or restriction by the State
of the carriage of goods or persons over them is no detraction from the freedom of trade commerce
and intercourse among the States. It is another thing to say that the constitutional assurance of that
freedom means that no part of the expense of providing the roads may be thrown directly upon the
traffic using them in the course of trade including inter-State trade. (at p44)

25. The idea that because the State provided roads and railways the State could so to speak control
the distribution of inter-State traffic in goods and passengers between the two means of transport
seems to have its source in the traditional belief that a man may do what he likes with his own and
in the tacit assumption that the State does not, in such a matter, differ from a man. But it is an idea
that has been put aside once for all. Nevertheless the question still remains whether the State,
considered as an institution of government, must look to its general resources of revenue not only in
order to provide the highways but also to maintain them and can demand no contribution from the
commerce that uses them if the commerce be inter-State. The question depends, in one view, upon
our notion of what is freedom of inter-State commerce and in another view upon our conception of
the place taken among the instruments of commerce of roads constructed to carry motor traffic of all
kinds. One may suppose that, if the governments concerned combined to construct a new roadway
between Melbourne and Sydney of the most modern kind capable of bearing heavy traffic, s. 92
would have nothing to say to a decision on the part of the governments that it should not be
constructed or opened as a free public way but only as a toll road so that the annual charges for
interest and costs of maintenance should be borne by the traffic that chose to use it. Such a road
would of course clearly fall within what was said in Hughes & Vale Pty. Ltd. v. State of New South
Wales (No. 2) (1955) 93 CLR 127 viz. "A modern highway is in fact a constructional work of a very
substantial character indeed. It cannot be distinguished from the facilities that have been mentioned
either in cost, the technical and engineering skill it demands or the general purpose it serves. It is an
engineering work of a major description designed to carry heavy motor vehicles between distant
places" (1955) 93 CLR, at p 178 . (at p45)

26. It would be true that the old roads would remain as alternatives to the traffic. It would be true
too that the new road would not have been dedicated to the public as a highway and would not
otherwise have come directly under the law of public highways. But how far are these two matters
elements determining the character of the toll as nothing but compensation for "the use of a physical
thing provided for the service of commerce"? For I venture to say that the toll supposed must bear
that aspect and not be regarded as an unconstitutional burden upon the freedom of inter-State trade.
The alternative choice of the old road would speedily become unreal. And the law of public
highways is State law which, unless s. 92 is to be construed as rendering it unchangeable, the State
Parliament may change or abolish as it sees fit. (at p45)

27. The truth is that we cannot, in this problem, ignore the ultimate financial relationship between
the road and the traffic. If the road were made by concessionaires under a franchise we would say
that but for the right to levy tolls the road would not exist and that because the road performed a
special service to the traffic, the traffic must pay the tolls. The illustration is of course far from the
present case; for we are concerned not with a modern highway of such a description or with toll
roads, but with a ton mileage charge for all Victorian highways. The value of the illustration is that
by its very obviousness it directs the mind to what must, as it seems to me, be the true point of the
present question. The true point must lie in the recognition of the completely interdependent relation
between modern transport and modern roads, not only as a matter of engineering but also as a
matter of finance. The success of transport by road depends upon the state of the roads and the state
of the roads depends upon the expenditure upon them, expenditure in reparation, for the most part,
of the wear and tear upon them caused by the transport. (at p46)

28. I believe that the logic of the relationship has led very many countries to place a great part of the
cost of highways upon the traffic that uses them. Here it is done by, (1) the contributions made
under the Commonwealth Aid Roads Act 1954-1955 out of the customs and excise duties mentioned
in the schedule to that Act, which in effect are levied on motor fuel, (2) registration fees and (3)
levies more or less analogous to that now in question. In America the pattern that obtains and has
obtained can be sufficiently seen from the case cited in the argument of Hughes & Vale Pty. Ltd. v.
State of New South Wales (No. 2) (1955) 93 CLR, at pp 140-143 and particularly from the opinion
of Frankfurter J. and the schedule thereto in Capital Greyhound Lines v. Brice [1950] USSC
51[1950] USSC 51; ; (1950) 339 US 542 (94 Law Ed 1053) . (at p46)

29. In the light of the considerations to which I have referred in the foregoing and, more
particularly, of those stated in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) (1955)
93 CLR, at pp 171-179 , it appears to me that the imposition of a charge for using the roads of a
State is not necessarily inconsistent with the freedom of inter-State commerce. (at p46)

30. But it is evident that such a charge must not go outside or beyond the limitations which are
necessarily implied in that conception of its nature which forms its justification. That conception is
that if the charge is no more than a fair recompense for the actual use made of the highway having
regard, not only to the wear and tear to which every use of it contributes, but to the costs of
maintenance and upkeep, its imposition may not be incompatible with the freedom guaranteed by s.
92. As the cases in the United States suggest, it is not possible consistently with s. 92 to impose a
tax on a man in respect of his right to engage in the inter-State carriage of goods or people. It is
another thing, however, to require him to pay for the actual use he makes of the road. Again, to
impose the capital costs of road construction upon the traffic would not seem consistent with s. 92.
Traffic is a constant flow and the regularly recurring charges of maintaining a surface for it to run
upon may be recoverable from the flowing traffic without any derogation of the freedom of
movement; but any contribution to capital expenditure goes altogether outside such a principle. 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. The places where a journey
begins or ends have no bearing on the justness of a compensatory charge made for using the road.
(at p47)

31. The passage which as I have already said must be read into this judgment from that in Hughes &
Vale Pty. Ltd. v. State of New South Wales (No. 2) (1955) 93 CLR, at pp 171-179 concludes (1955)
93 CLR, at pp 178, 179 with a reference to the difficulties necessarily arising in working out the
distinction between, on the one hand, recompense or remuneration for the provision of a specific
physical service of which particular use is made and, on the other hand, a burden placed on inter-
State transportation in aid of the general expenditure of the State. The careful argument in this case
on the part of the plaintiffs was of course not directed to diminishing or solving the difficulties; but
it had a particular value as an exposure of latent questions to which any practical measure must give
rise. Nevertheless I am confirmed in the view that it is "necessary to draw the distinction and
ultimately to attempt to work out the conception so as to allow of a charge compatible with real
freedom because it is no more than a fair recompense for a specific facility provided by the State
and used for the purpose of his business by the inter-State trader" (1955) 93 CLR, at p 179 . (at p47)

32. It will have been observed that the tonnage rate of one-third of a penny a mile is charged upon
the whole journey by s. 26 and the fourth schedule of the Commercial Goods Vehicles Act. In the
case of an inter-State journey it may well begin at the warehouse door of the suburb of a capital city
and end in a country town of a neighbouring State. The beginning and the end of the journey may
involve ill-made and insufficient streets and the middle of the journey a main road or State highway.
Is a flat rate charge "justifiable" for the whole journey? At each end the State may have provided
bad roads and, owing to their insufficiency, the axle weight of the vehicle may have done them great
injury. The middle of the journey may have been over an expensive but satisfactory road and the
wear and tear slight. Infinite variations of the theme are possible but this illustration is enough to
make it clear. Is it consistent with the theory that a proper charge by way of compensation for using
the roads is not incompatible with freedom of transit to impose a flat tonnage rate per mile in
disregard of all the varying roads and circumstances? It is easy, in answer to the question, to say that
the exigencies of a busy and practical world do not admit of any nicer treatment of individual cases.
But such an answer may draw the retort that it only shows how impossible the distinction is. The
point however is met by other considerations. There is only one charge it is true, a third of a penny a
ton per mile. But it is not a flat rate per vehicle. The load capacity of the vehicle must, to begin
with, be at least four tons. That implies a vehicle that is not light. As the load capacity goes up, the
weight of the vehicle increases and so does the amount payable. The limit of loaded weight in
Victoria is an axle weight of 17,000 lbs. and for particular roads this may be reduced by
proclamation; (see s. 32 (1) (g), (3) and (4) of the Motor Car Act 1951 (No. 5616)). If you add to
this the general probabilities to which conditions in Victoria give rise, it is a reasonable conclusion
that, unless in relation to the more frequented inter-State routes the rate is excessive, then the
complaint ought not to be made that it is excessive in relation to other highways. (at p48)

33. In the next place it is to be noted that an arbitrary percentage (forty per cent) of the load capacity
is adopted as that to be added to the tare weight. Is it "reasonable" to adopt such a standard? Does it
satisfy the requirement that there should be a reasonable relation between the charge and the
purpose, viz. a contribution to upkeep commensurate with the use made of the roads and the
consequential wear and tear? Here again general considerations must be taken into account. The
loads carried by any given vehicle must vary. It is not "unfair" to calculate the charge on a basis
which experience suggests as the likely average of the loads carried by vehicles, in a matter where
exact statistical investigation and the assessment of each individual load are alike out of the
question. By "unfair" is meant a course likely to result in an unwarranted burden upon the
commercial journeys of individuals incommensurate with the purpose of obtaining no more than
recompense for the use of the highway. (at p48)

34. Then it was said that the Act was not expressed to be temporary, that it imposed a fixed rate
without provision for change and, even if its amount appears now not to be incompatible with s. 92,
a change of conditions may give it an entirely different effect. To that it must be answered that if
now there is no interference with the freedom of inter-State trade commerce and intercourse there
cannot be any present violation of s. 92. If tomorrow the facts change so that the operation of the
enactment changes too and s. 92 is violated (an hypothesis making some demands on credulity) then
s. 92 will doubtless prevail over it. (at p49)

35. Next it was said that close consideration of the operation of s. 4 and the list in the second
schedule and comparison with s. 25 (b) and the exemptions in the third schedule together with s. 25
(a) raise a sufficiently persuasive inference that the Commercial Goods Vehicles Act 1955 had for
its real object the protection of the railway system. It appeared with enough certainty, so it was said,
that the right to a licence was given to intra-State traffic only where the railways do not provide its
needs and that the incidence of the charge corresponded in pattern. It may be remarked that s. 4 and
the second schedule go back in effect to the Transport Regulation Act 1933 (No. 4198) s. 22 (h) and
third schedule. But as that Act had for one of its purposes the protection of the railways, perhaps the
early beginning of these provisions is of little importance. What is of importance is that the
argument is based on the policy attributed to exemptive and entitling provisions; from their nature it
is sought to give to the charge a complexion obnoxious to s. 92. It does not give any new or
different feature or application to the charge. The argument seems to lack a sufficient basis for an
adverse conclusion as to the motive of the legislature; and even if the inference were drawn it would
amount really to another example of reliance upon what Isaacs C.J. called "legislative mens rea" as a
ground for bringing a statute within s. 92. (at p49)

36. The most serious objection to the validity of the charge lies in the fact that it is named in the
statute as an unexplained figure. If calculations are made with reference to imaginary journeys to the
New South Wales or South Australian border from Melbourne of vehicles of various axle weights
and loading capacities, it will be found that there is no prima facie reason for suspecting that the
incidence of the charge is harsh or prohibitory. But there is no positive ground on the face of the
legislation for associating the quantum of the rate with the actual cost of the maintenance and
upkeep of Victorian roads. If it matters we were informed from the bar that no report or statement of
figures was placed before the legislature showing the process by which the rate was reached. In
these circumstances the defendants (the State of Victoria and the board) went into evidence for the
purpose of proving that the rate is not excessive but falls within the limits imposed by the
considerations to which I have adverted and that it is in the sense explained "reasonable." A first
scrutiny of the basis of calculation seemed to justify the contention. But the closer criticism to
which the evidence was subjected by Mr. Menhennitt greatly weakened its cogency. It would be
tedious to go over the question in detail. But there were some points made against the process of
estimation with which I cannot agree. In the first place I think it was quite proper to disregard the
fact that a proportion of road costs are met from rates. That cannot operate in relief of those using
the roads for the purposes of their business. In the second place there is no reason for excluding
from the figures for maintenance the estimate of what ought to have been expended but had not
been expended. Nor is the argument sound as to the need of taking into account a correlative
reduction in the ensuing year. (at p50)

37. On the whole I think the defendants made out their case that the rate adopted in the fourth
schedule of the Act was in fact of an order imposing upon the class of vehicles and owners falling
within its application no more than a reasonable charge by way of compensation or recompense for
the use actually made of the roads; one falling fairly enough within the description of s. 26 (1), viz.
"towards compensation for wear and tear caused thereby to public highways in Victoria". (at p50)
38. The attack on Pt. II of the Act has certainly revealed weaknesses in the manner in which it is
constructed but on the whole I think the proper conclusion is that the charge it imposes does not
involve an inconsistency with s. 92. (at p50)

39. The second question in the suit relates to the Motor Car Acts 1951-1956 (Vict.), ss. 6, 17 and 20
and pars. B (b) and (c) of the second schedule together with reg. 59 of the Motor Car Regulations
(Victorian Government Gazette 1952, No. 838, p. 5963, 1954, No. 686, p. 5291). The question is
whether consistently with s. 92 vehicles exclusively employed in carrying goods in the course of
inter-State trade can fall within the application of so much of s. 6 of the Motor Car Acts 1951-1956
(Vict.) as requires the payment of the appropriate fees prescribed by the second schedule. (at p50)

40. The provision imposing the requirement is expressed in general terms but if it cannot
constitutionally apply to vehicles exclusively engaged in inter-State trade there can be no question
of the general invalidity of the provision. Victorian law contains a general "severability provision"
(Act No. 3930) and inasmuch as the schedule and so much of s. 6 as imposes the liability to
payment clearly have a distributable operation or application, it would mean no more than that such
vehicles were not covered. There is of course no question that vehicles engaged in intra-State trade
must comply with the registration provisions other than that imposing a liability to pay fees. Further,
vehicles entering Victoria but registered in other States or parts of Australia are not involved. For
reg. 59, made under s. 20, exempts a motor car temporarily in Victoria from the obligation to
register and pay registration fees provided it is registered and insured in accordance with the laws of
another State or a Territory and bears the registration plate and label if any, of that State or
Territory. (at p51)

41. Again there can be no doubt, and in fact it is not denied, that s. 6 and the second schedule,
which impose the liability to pay registration fees, apply in full to motor vehicles which, though
engaging in inter-State trade, do not do so exclusively. The question is confined to motor vehicles
which depend upon a Victorian registration and are exclusively employed in inter-State trade. This
does not mean that the owner of the motor vehicle or its driver must reside in Victoria; s. 18 says
they need not. It means that according to Victorian State law the vehicle has no other title to be on
the highway than a Victorian registration. Section 17 (a) provides that if a motor car or trailer is
used on a highway without being registered as required by Pt. II, which relates to registration, the
driver is guilty of an offence, unless he can make out one of certain defences none of which is
material here. (at p51)

42. Sub-section (4) of s. 6 says that, subject to the Act, a fee, as provided for in the second schedule,
shall be paid on the registration of or the renewal of the registration of a motor car, motor cycle or
trailer. The registration is effective for twelve months only: sub-s. (3). The second schedule must
now be found in Act No. 6038 but except that the fees specified are fifty per cent higher it is the
same as that standing in the Motor Car Act 1951 when the writ was issued. The schedule fixes fees
which are to be calculated on the power-weight units of the car. To obtain the power-weight units of
a car you add the horsepower to the weight in hundredweights of the car unladen and ready for use.
The schedule contains a list of rates varying for different descriptions of vehicle. A not immaterial
matter is that the kinds of vehicles which concern the plaintiffs are described according to the use
made of them. The very definition of "motor car" in s. 3 (1) of the Act includes the attribute that the
vehicle is "used or intended for use on any highway". Sub-paragraph (b) of par. B of the schedule
prescribes the rates "for a motor car used for carrying passengers for hire . . . or used for carrying
goods or (subject to an exception in favour of primary producers) in the course of trade". Then there
is a list of rates which ascend with the weight of the car and also if the wheels are six or more and
not four and again if the tires are not pneumatic. For present purposes it is enough to give the rates
in par. B (b) for a vehicle with less than six wheels but having pneumatic tires. If the motor car is
less than two tons in weight unladen, for each power unit the rate is six shillings; if two tons and
less than three tons, seven shillings and sixpence, and if three tons or more, nine shillings. (at p52)

43. All registration fees go into the Country Roads Board Fund (s. 38 (d) as substituted by s. 6 (1)
of Act No. 5512); the application of that fund is wider than maintenance of highways (see s. 39).
Although the provisions of the Act and of the regulations are framed on the footing that it is the
owner who will register a car and pay the registration fee there is no penalty upon ownership or
possession of an unregistered motor vehicle. Driving the car on the highway without registration is
the act to which the penalty is attached. (at p52)

44. The incidence of the fees may be seen from figures given in evidence. It appears that before the
rates were raised by fifty per cent the annual fee for an average truck of three to four tons, petrol
driven, would be 21 pounds, for one of four to five tons 26 pounds, for one of five to six tons 38
pounds and for one of six tons and more 52 pounds. One of the plaintiffs said that since the increase
in the rates the annual registration fee he paid for a truck of eight tons tare and of ten tons capacity
was 108 pounds. (at p52)

45. It will be seen from the foregoing that the registration fee is, (i) payable on registration, (ii)
quantified by reference to (a) the power and weight of the vehicle, (b) its commercial use and (c) the
possession of tires likely to be more harmful to roads than pneumatic tires, (iii) enforced by
penalising the use on the highway of an unregistered motor vehicle and (iv) sufficient in amount to
constitute a significant burden. Before the Full Court counsel devoted little argument to the question
whether the fees can be imposed on vehicles exclusively employed in carrying goods in inter-State
trade. But to me it seems to be by no means free of difficulty. For the defendants it was simply said
that the question was governed by Willard v. Rawson (1933) 48 CLR 316 , the authority of which
still stood. The grounds upon which the decision in that case proceeded would no doubt apply to the
present case; indeed I think that if now accepted they would apply with greater logical force than
they did to the legal and factual situation in Willard v. Rawson [1933] HCA 12; (1933) 48 CLR 316
. But I cannot agree that it is the same legislation or the same case. The question in Willard v.
Rawson [1933] HCA 12[1933] HCA 12; ; (1933) 48 CLR 316 concerned an inward journey into
Victoria by a truck registered in New South Wales carrying nothing but goods from New South
Wales. Until about eighteen months before that time the relevant Victorian law had been in much
the same condition as it is now. Section 4 (1) of the Motor Car Act 1928 required registration in the
same way as s. 6 (1) of the Motor Car Act 1951 now does. Sub-section (3) of s. 4 of the former Act
correspond with sub-s. (4) of s. 6 of the latter and required payment on registration of the fees
provided for in a second schedule which was indistinguishable from that of the present Act, that is
before the rates were raised by fifty per cent. Sub-section (4) of s. 4 of the Act of 1928 contained
the provisions which in substance are now to be found in s. 17 of the Act of 1951 and included the
prohibition of driving an unregistered motor car upon a highway. Sub-section (7) of s. 4 of the Act
of 1928 contained in effect the provision which now stands as reg. 59 exempting visiting cars from
registration and consequently from the payment of the fees. It differed in confining the exemption to
cars owned by residents of another State. But Willard owned the car he drove and he resided in New
South Wales; so the difference may be ignored. What caused the difficulty was the introduction into
the law of Victoria of a limitation upon the exemption of visiting motor cars. By the Motor Car Act
1930 (No. 3901) s. 5 (e) the exemption contained in sub-s. (7) of s. 4 of the Act of 1928 was
replaced by a new exemption which, although otherwise of the same general effect, expressly
excluded from its benefit "a motor car which is used in Victoria for carrying passengers for hire or
goods for hire or in the course of trade". This form of exclusion of the commercial use of vehicles
from the exemption remained in force but a short time. Indeed before Willard's Case [1933] HCA
12; (1933) 48 CLR 316 reached this Court the Motor Car Act 1932 (No. 4045) s. 2 (1) had
substituted a proviso to the exemption requiring motor cars carrying passengers or goods from
another State to obtain a permit for a short incursion into the State and special permits for longer
journeys. The proviso would not now be regarded as valid. It was removed in 1939 by s. 42 of Act
No. 4688 in favour of a regulation-making power covering the subject. My dissent from the decision
of the Court upholding Willard's conviction for driving his car, although carrying goods and so
excluded from the exemption, was not based on narrow grounds. But in Hughes & Vale Pty. Ltd. v.
State of New South Wales (No. 1) [1953] HCA 14; (1953) 87 CLR 49 I stated the position I was
prepared to adopt as to Willard's Case [1933] HCA 12; (1933) 48 CLR 316 . I did so in the course
of an attempt to make it clear that there is nothing necessarily inconsistent with s. 92 in making
uniform laws covering the organisation and conduct of motor traffic and transportation. I shall
repeat the passage. "For myself I do not know why a uniform law for the organisation and the
regular conduct of motor traffic or a uniform law prescribing conditions for the business of carrying
by road should be regarded as necessarily impairing the freedom of inter-State trade commerce and
intercourse. The provision which in Willard v. Rawson [1933] HCA 12; (1933) 48 CLR 316 , all the
judges but myself upheld as valid did not appear to me to be of this character. It was a special
provision affecting only motor cars registered in other States if used in Victoria for the carriage of
goods. Motor cars if registered in another State were exempt from registration in Victoria and from
the payment of the registration fee annually payable in that State. But the provision impugned
specially withdrew this exemption if the vehicle was used to carry goods. Thus entry into Victoria of
a New South Wales lorry carrying goods at once exposed it to the levy of what to a Victorian car
would be an annual fee. This appeared to me to be a direct burden upon inter-State trade. I am quite
prepared to accept the view that my conclusion as to the character or characterisation of the
provision was erroneous, but it has nothing to do either with the present case on the one hand or
with a general regulation of transport on the other hand" (1953) 87 CLR, at p 69 . In R. v. Vizzard;
Ex Parte Hill [1933] HCA 62[1933] HCA 62; ; (1933) 50 CLR 30, at pp 67,68 I had distinguished
Willard's Case (1) by reference to the grounds on which it was decided and I quoted passages from
the reasons of Rich J., of Starke J., of McTiernan J. and of Evatt J. I do not think I did more than
show by quotation the view which each of their Honours took but Fullagar J. in McCarter v. Brodie
[1950] HCA 18; (1950) 80 CLR 432 regarded the passage as a correct statement by me of the
reasons underlying the decision in Willard v. Rawson [1933] HCA 12[1933] HCA 12; ; (1933) 48
CLR 316 and summarised them thus - "To put it very shortly, the fee was not a tax but rather in the
nature of a reasonable charge for facilities provided by the State and used by persons who drove
motor cars in Victoria, it did not deal with trade and commerce as such, and, if it could be said to
have any burdensome effect on inter-State trade and commerce, that effect was merely indirect and
consequential. So understood, I think that there is no great difficulty in regarding Willard v. Rawson
[1933] HCA 12; (1933) 48 CLR 316 as an example of 'regulatory' legislation. It would not, of
course, affect my opinion in the present case if I though otherwise of Willard v. Rawson (1933) 48
CLR316 , but I have thought it proper to express my view of that case" (1950) 80 CLR, at p 500 . In
Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 1) (1953) 87 CLR, at p 102 Kitto J.
expressed parenthetically his agreement with this statement of Fullagar J. In the judgment of
McTiernan and Webb JJ. and myself in Nilson v. State of South Australia [1955] HCA 31; (1955)
93 CLR 292, at p 304 , Willard's Case [1933] HCA 12; ; (1933) 48 CLR 316 was again referred to
and I stated for myself that all I found it necessary to say about the case was that the decision of the
majority of the Court, in so far as it is not to be accounted for by an adherence to a conception of
the operation of s. 92 which is no longer open, appears to depend simply upon a characterisation in
which I found myself at the time unable to agree. (at p55)

46. In his reasons in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28;
(1955) 93 CLR 127 Kitto J. expressed fully his views upon Willard v. Rawson [1933] HCA 12;
(1933) 48 CLR 316 and I shall set out what his Honour said. It is as follows - "I should add a word
as to the view to which I have come in regard to the much debated case of Willard v. Rawson [1933]
HCA 12; (1933) 48 CLR 316 . The judgments of Evatt and McTiernan JJ. must, I think, be put on
one side as having proceeded upon a view of s. 92 which the more recent decisions of the Privy
Council have made untenable. Rich J. directed his attention to the question whether the tax there in
question (which he described as a fee upon registration) was a direct, immediate or intended burden
upon inter-State trade, commerce, and intercourse as distinguished from one which was
consequential, mediate or remote; and his answer that the burden was merely consequential was
based upon the view that the tax was imposed, not upon trade, commerce, or intercourse as such, but
upon motor vehicles. If his Honour had been willing to concede that, being a tax upon the use of
motor vehicles on public streets, it was a burden imposed in reference to one of the essential
characteristics of a form of inter-State intercourse, he must necessarily have given the opposite
answer to the question. Starke J., after adverting to some considerations which he apparently
regarded as tending in favour of the validity of the tax, adopted as 'the real answer' the view that the
requirement that fees be paid was attached as a reasonable adjunct to the main provisions of the Act,
just as were (in his Honour's opinion) the registration and licensing requirements, the main
provisions being considered as directed to the protection of the State highways and those who used
them. The licensing provisions have since been shown not to be of this character. The registration
provisions are no doubt (in the main at least) consistent with s.92 as being in aid of the regulation of
the traffic, even in the narrowest sense of regulation. If the tax in question had been really a
registration fee, in the sense of a payment for the work of officers of the State in putting the
registration through, perhaps it would have been valid. But in fact it was of a totally different
character; it was simply a tax upon a form of travel, the payment of it being made a condition
precedent to the right to use the public streets" (1955) 93 CLR, at pp 224,225 . In the same case
Taylor J. referred to Willard v. Rawson [1933] HCA 12; (1933) 48 CLR 316 . His Honour expressed
the opinion that the reasons of the majority are now at least of doubtful validity. His Honour said
that in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 1) (1955) AC at p 283; (1954) 93
CLR, at p 10 the Judicial Committee were not invited to review the case (1955) 93 CLR, at p 244 .
Taylor J. then pointed out the difficulties now of supporting the several grounds upon which the
respective judgments of the members of the majority of the Court proceeded. Finally his Honour
said this - "I do not understand the observations of Fullagar J. in McCarter v. Brodie (1950) 80
CLR, at p 500 as giving approval, as was suggested in argument, to the reasoning in Willard v.
Rawson [1933] HCA 12; ; (1933) 48 CLR 316 . Rather they indicate that, upon the views taken in
that case of the character and effect of the Act in question, the decision was by no means an obstacle
to the opinions formed and expressed by him concerning the Victorian Transport Regulation Act"
(1955) 93 CLR, at p 245 . (at p56)

47. In the foregoing observations of Kitto J. it will be noticed that the Act is submitted to objective
consideration. It seems however that Fullagar J. put his views about Willard v. Rawson [1933] HCA
12; (1933) 48 CLR 316 rather upon the conception of the legislation found in the judgments of the
majority of the Court. As will have been seen, it is in that way that I found a reconciliation of the
decision with other cases. It is now necessary to turn to two decisions given by the Court with
reference to the same kind of fee or duty, namely the decision with reference to the New South
Wales Motor Vehicles (Taxation) Act 1951 in Hughes & Vale Pty. Ltd. v. State of New South Wales
(No. 2) (1955) 93 CLR, at pp 179-183, 196-198, 211-215, 218, 219, 244 245 , and the decision with
reference to Nilson v. State of South Australia [1955] HCA 31; (1955) 93 CLR 292 . (at p56)

48. In the first of these cases the Court held invalid an attempt to include vehicles used exclusively
in or for the purposes of inter-State trade in a liability to a tax levied on motor vehicles upon
registration. In most features the tax closely resembled the registration fees now in question but
there were the following distinctions: (1) It was imposed by a separate statute and called a tax. (2)
While it was payable as a condition of registration it was a Crown debt, and a failure to pay it
exposed the vehicle to seizure if used on a public street. (3) There was no exemption of vehicles
registered in another State. (4) The rates of tax were calculated upon the weight of the motor vehicle
in hundredweights, were steeply graduated but on much the same basis as in Victoria and were
appreciably higher than in that State. The examples given in this judgment of the incidence of the
rates in the Victorian schedule may be compared with the examples of the New South Wales tax
given in that case (1955) 93 CLR, at pp 180, 181, 213 . (at p57)

49. In holding this tax or duty inapplicable to vehicles employed exclusively in inter-State trade,
McTiernan and Webb JJ. and I gave reasons which laid some emphasis on the position of the carrier
seeking to enter New South Wales with a vehicle registered in another State. But the judgment
proceeded:- "If on the other hand the operator belongs to New South Wales, his registration will
necessarily be annual although he may have his vehicle across the border for long periods and off
the roads altogether for substantial intervals. The fact is that in neither case has the tax any definite
relationship to the use of the roads. This is perhaps the principal but it is not the only difficulty in
the way of sustaining the tax as a compensatory charge made for the use of the roads as a facility
provided by the State. The relation between the various rates of tax is evidently not based on the
amount of use which the vehicles make or are likely to make of the roads" (1955) 93 CLR, at pp
181, 182 . After discussing other suggested justifications the judgment turns to the possibility of
treating the exaction as a tax levied on the motor vehicles on the basis of property and proceeds:- "In
the case of a piece of property which can have only one use and that transport, for example a use in
the carriage of goods by road, that is not perhaps a basis for validity which is easy to make out. But,
be that as it may, the truth is that the incidence of the tax, though in terms it is levied on 'motor
vehicles', is upon their use. It is a condition of registration without which they cannot be used on
roads of the State. The definition itself of motor vehicle depends on propulsion in the streets. The
tax operates immediately upon the use of a motor vehicle for the carriage of goods in inter-State
commerce and imposes a substantial burden. Section 92 therefore protects a person whose use of the
vehicle is in inter-State commerce from the imposition of the tax" (1955) 93 CLR, at p 182 . (at
p57)

50. Williams J. stated thus the essential ground for holding the tax incapable of applying to vehicles
exclusively engaged in inter-State trade:- "The amount of the tax is not calculated upon the distance
the vehicle is driven along the roads. It is imposed so that the vehicle may be lawfully used or
driven on the public streets for a certain period. It is therefore necessary for any motor vehicle
moving along a public street in New South Wales in order to cross the border in or out of New
South Wales to be registered and pay the tax. Otherwise it is liable to be seized and forfeited
(Management Act, s. 6). The tax is imposed directly upon the movement of vehicles and therefore
upon the movement of vehicles in inter-State trade commerce or intercourse" (1955) 93 CLR, at pp
196, 197 . Fullagar J. said:- ". . . the exaction of a fee as a mere incident of registration may be said
not to offend against s. 92: cf. Willard v. Rawson [1933] HCA 12; (1933) 48 CLR 316 . But the
exaction imposed by the Management Act and the Taxation Act cannot be regarded as a mere
incident of registration regarded as an object in itself. What is imposed by those Acts is a real and
very substantial tax on motor vehicles" (1955) 93 CLR, at p 214 . In the concluding part of his
reasons his Honour says - "It is true that the tax in question is not imposed on or in respect of any
activity which possessed the characteristics of trade, commerce or intercourse. Generally speaking,
it will fall on the owner of a chattel, and it may be said without material inaccuracy, that it will be
payable by him by virtue of his ownership. But this is not, I think, enough to take it outside the
scope of s. 92. It is, in form and in substance, a tax on a chattel, in the same sense as a land tax is a
tax on land. But the particular chattel in question is a chattel the very raison d'etre of which is that it
may serve as an instrument of trade commerce and intercourse. It is one of the normal everyday
instruments of trade commerce and intercourse. And the Acts forbid it to be used in New South
Wales, unless the tax is paid, in the performance of its only useful function. Of such a restriction or
burden, so far as it affects inter-State trade commerce and intercourse it cannot, I think, be said that
it 'is imposed in virtue of or in reference to none of the essential qualities which are connoted by the
description "trade, commerce, and inter-course among the States"' (per Dixon J. in Gilpin's Case
(1935) 52 CLR, at p 206 )" (1955) 93 CLR, at pp 214, 215 . Kitto J. concurred in the view that the
tax could not validly apply to vehicles used solely in inter-State trade even if "an appearance of
some reasonable relation between the amount of the tax payable by an individual and his use of the
roads might prevent a conflict with s. 92" (1955) 93 CLR, at p 216 . Taylor J. in effect treated the
decision in Willard v. Rawson [1933] HCA 12; ; (1933) 48 CLR 316 as the only possible ground for
regarding the tax as capable of including vehicles exclusively engaged in inter-State trade and his
Honour disposed of the decision in the manner already stated (1955) 93 CLR, at pp 244, 245 . (at
p59)

51. Nilson v. State of South Australia [1955] HCA 31; (1955) 93 CLR 292 related to motor vehicles
registered in other States and coming into South Australia in the course exclusively of inter-State
trade. The vehicles could not do so under South Australian law without registration and payment of
registration fees if the unladen weight of the vehicles exceeded two and a half tons. In mode of
calculation and incidence the fees resembled the registration fees with which we are now concerned.
The requirement that they should be paid on registration is the same and so is the prohibition against
driving a vehicle on a road unless registered. In unanimously holding that s. 92 protected the
plaintiffs from the imposition the members of the Court referred to the reasons given in Hughes &
Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 . In the
judgment of McTiernan J., Webb J. and myself the following passage states the grounds of the
decision - "The plaintiff's case is that this amounts to a tax upon inter-State transportation which is
inconsistent with the freedom of trade commerce and intercourse among the States guaranteed by s.
92. It is difficult to see what other character it can bear. The roads cannot be used unless the vehicle
is registered and the vehicle cannot be registered unless the imposition is paid. Before a commercial
motor vehicle carrying goods from another State can enter South Australia the owner must register
it and pay the large fee or tax. The registration will enable him to use South Australian roads for six
months if he pays fifty-two and one-half per cent of the yearly fee. But he may not need to use them
again or he may intend to use them only intermittently. The decision of the question is covered by
the reasons given in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28;
(1955) 93 CLR 127 which should be read as part of this judgment" (1955) 93 CLR, at p 303 . (at
p59)

52. I have thought it desirable to set out fully the course which judicial opinion has followed upon
the consistency with s. 92 of exactions like that now in question because only so is it possible to see
- first, the complete lack of relation of the doctrines upon which Willard v. Rawson [1933] HCA 12;
(1933) 48 CLR 316 was decided to the principles which, under the decisions of the Privy Council,
now guide the Court in applying s. 92; second, the artificial view of the Motor Car Act and schedule
adopted by or ascribed to Willard v. Rawson (1933) 48 CLR 316 , and third, the close analogy to the
present case of the decision in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955]
HCA 28; (1955) 93 CLR 127 and in Nilson's Case [1955] HCA 31; (1955) 93 CLR 292 . (at p60)

53. It appears to me that on a proper scrutiny of Pt. II of the Motor Car Acts 1951-1956 (Vict.) and
the second schedule it must be seen that no room exists for the grounds upon which it has been
sought to reconcile with s. 92 the imposition upon vehicles exclusively engaged in inter-State
commerce of the rates contained in sub-par. (b) of par. B of the schedule. (1) The exaction cannot be
regarded simply as a fee contributing to the cost of registration a service in the interest of motor car
owners and drivers and others so that it is nothing but an incident or adjunct of the traffic. (2) It
cannot be treated as another contribution to the maintenance of the highways compensatory for the
use made of them. (3) It cannot be justified as a tax upon the ownership or possession of a chattel
considered independently of the use of the chattel in the carriage of persons or goods, including the
inter-State carriage of persons or goods. (4) It cannot be treated as involving no appreciable burden
upon the possession of a motor vehicle as a means of inter-State carriage and movement. (at p60)

54. The truth is that the owner of a motor vehicle unregistered elsewhere is prohibited from driving
it upon a Victorian highway in the course of inter-State commerce unless, in order to obtain
registration, he pays an annual tax involving an appreciable burden, a tax which is heavier if he
desires to carry passengers or goods or journey in the course of trade and increases with the size of
his vehicle, that is to say with its carrying capacity. It is thus a tax the incidence and quantification
of which is bound up with inter-State trade and commerce when it is applied to vehicles exclusively
engaged therein. (at p60)

55. It follows that consistently with s. 92 motor vehicles solely engaged in inter-State commerce
cannot be liable to pay the registration fees imposed by sub-par. (b) of par. B of the second schedule.
(at p60)

56. I think that the relief which will suffice for the purposes of the plaintiffs is a declaration that
sub-s. (4) of s. 6 of the Motor Car Act 1951 (No. 5616) and sub-pars. (b) and (c) of par. B of the
second schedule as substituted by Act No. 6038 cannot apply to commercial goods vehicles used on
highways in Victoria not otherwise than in the course of trade and commerce among States and in
what is necessarily incidental thereto and that s. 17 cannot apply so as to make it an offence for a
person to drive a commercial vehicle exclusively so used without complying with the requirement
of s. 6 that the vehicle shall be registered and a fee shall be paid pursuant to sub-s. (4) of that
section. Otherwise the relief claimed should be refused. (at p61)

McTIERNAN J. I agree in and respectfully adopt the reasoning of the Chief Justice both in regard
to Pt. II of the Commercial Goods Vehicles Act 1955 and s. 6 (4) of the Motor Car Act 1951 and
par. B (b) of the second schedule of the Motor Car Fees Act 1956. (at p61)

2. Accordingly, I concur in the order that the Chief Justice proposes. (at p61)

3. I would only add a reference to Adam Smith's "The Wealth of Nations" Book V, Part Third,
Chap. I, where such public works as roads, bridges, etc. are discussed as facilities of commerce. (at
p61)

WILLIAMS J. In this action many plaintiffs are named but few could be chosen as proper plaintiffs.
Those who are proper plaintiffs are individuals engaged in the business of the inter-State carriage of
goods by road. For that purpose they use the public highways of Victoria. The vehicles they us are
sometimes fully loaded, sometimes partly loaded and sometimes unloaded. None of the plaintiffs
uses the whole of the Victorian network of public highways. But for the purposes of inter-State
carriage they are free to use any of these highways. In the action declarations are sought (1) That Pt.
II of the Commercial Goods Vehicles Act 1955 (Vict.) or ss. 26-33 thereof and the fourth and fifth
schedules thereto or parts of such sections and schedules are contrary to s. 92 of the Constitution
and beyond the powers of the Parliament of Victoria and invalid, or alternatively have no
application to the owners of commercial goods vehicles whilst such vehicles are travelling along
public highways in Victoria in the course of or for the purpose of inter-State trade commerce or
intercourse or to persons driving such vehicles or to such vehicles whilst so travelling. (2) That ss.
6, sub-ss. (1), (2), (3), (4) and (5), and 17 (a) (b) and (d) of the Motor Car Acts of the State of
Victoria or parts thereof are contrary to s. 92 of the Constitution and beyond the powers of the
Parliament of Victoria and invalid, or alternatively have no application to owners, operators or
drivers of commercial goods vehicles used on highways in Victoria exclusively in the course of or
for the purpose of inter-State trade commerce or intercourse. Very wide declarations are therefore
sought but, having regard to s. 2 of the Acts Interpretation Act 1930 (Vict.), the plaintiffs could not
expect to obtain declarations in respect of any of the impugned legislation other than declarations
that such legislation cannot validly apply to vehicles used exclusively in and for the purpose of
inter-State trade commerce and intercourse. (at p62)

2. The action came on for hearing before Taylor J. who, after hearing the evidence, referred the
action to the Full Court under the provisions of s. 18 of the Judiciary Act 1903-1955. Of the two
Acts the constitutional validity of which is challenged little need be said about the Motor Car Acts
1951-1956. Sections 6 and 17 (a) (b) and (d) of these Acts are indistinguishable in substance from
the sections of the Motor Vehicles Taxation Management Act 1949-1951 and the Motor Vehicles
(Taxation) Act 1951 (N.S.W.) which were held to infringe s. 92 of the Constitution in Hughes &
Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 . The
Motor Car Acts operate to make it unlawful for any person to drive a motor car on a Victorian
highway without the vehicles being registered as required by the Act. The formula for calculating
the registration fee as provided in the second schedule is to ascertain the power weight unit of the
vehicle by adding together the sum of its horsepower and the weight in hundredweights unladen and
ready for use and to multiply a sum of money by this power weight unit. In this way a considerable
fee is arrived at. It is a fee which has no relation to a reasonable fee for inspecting a vehicle to see
that it is in a fit mechanical condition and otherwise suitable for use on the Victorian highways or
for giving it a registration number so that it might readily be indentified. The fee must be paid as a
condition precedent to the vehicle's being lawfully driven on the Victorian highways for a period of
twelve months. The amount of the fee bears no relation to the distance the vehicle is driven along
the highways. It is paid for the privilege of using the highways at all. It cannot be described as a
contribution towards the maintenance of the highways to make good the damage done to them by
the use actually made of them by the vehicle. Sections 6 and 17 (a) (b) and (d) of these Acts must
for the reasons given in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) (1955) [1955]
HCA 28; 93 CLR 127 be held to be invalid in respect of vehicles used exclusively in and for the
purpose of inter-State trade commerce or intercourse. See the joint judgment of Dixon C.J.,
McTiernan and Webb JJ. (1955) 93 CLR, at pp 179-182 ; Williams J. (1955) 93 CLR, at pp 196-198
; Fullagar J. (1955) 93 CLR, at pp 211-215 ; Kitto J. (1955) 93 CLR, at pp 215, 216 and Taylor J.
(1955) 93 CLR, at pp 244, 245 . The present Victorian Act is the same in all material respects as the
Act that was held to be valid in Willard v. Rawson [1933] HCA 12[1933] HCA 12; ; (1933) 48 CLR
316 but in my opinion that decision is inconsistent with the reasons of the Privy Council in Hughes
& Vale Pty. Ltd. v. State of New South Wales (No. 1) (1955) AC 241; (1954) 93 CLR 1 , an opinion
which I first expressed, somewhat in sorrow, in Nilson v. State of South Australia [1955] HCA 31;
(1955) 93 CLR 292, at p 305 . The dissenting judgment of Dixon J., as he then was, in Willard v.
Rawson [1933] HCA 12[1933] HCA 12; ; (1933) 48 CLR 316 should now be accepted as correct.
(at p63)

3. The constitutional validity of Pt. II of the Commercial Goods Vehicles Act must now be
considered. This legislation does not in my opinion infringe s. 92 and is valid. I propose to state my
reasons for reaching this conclusion as briefly as I can. In Hughes & Vale Pty. Ltd. v. State of New
South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 five out of the seven judges of this Court
expressed the opinion that a State can charge a person engaged in the inter-State carriage of goods a
reasonable sum as compensation for the wear and tear done to the highways by his vehicles. The
highways are a facility provided and maintained by the State without which the goods could not be
carried by road at all and a reasonable charge for their use, having regard to the benefit the inter-
State carrier derives from their existence, does not constitute an undue burden on the freedom of
inter-State trade guaranteed by s. 92. The relevant passages appear in the joint judgment of Dixon
C.J., McTiernan and Webb JJ. (1955) 93 CLR, at pp 172-179 ; in the judgment of Williams J.
(1955) 93 CLR, at pp 190-195 and in the judgment of Fullagar J. (1955) 93 CLR, at pp 204-211 . It
was contended that these passages, not being essential to the decision, are mere obiter dicta and we
were invited to reconsider them and to decide not to follow them. It is true that the views there
expressed are obiter but it is obvious that they were only expressed after careful consideration in
order to give the legislatures concerned some indication of the kind of legislation imposing a charge
which could stand consistently with s. 92. That the State legislatures were urgently in need of such
guidance is apparent from a perusal of the cases which occupy vol. 93 of the Commonwealth Law
Reports from p. 127 to p. 316. In discussing the constitutional validity of Pt. II of the Commercial
Goods Vehicles Act, I intend to accept these passages as a correct statement of the law and to
dispose of the present proceedings on this basis. (at p63)

4. Part II which is headed "Contributions to Road Maintenance" contains ss. 25 to 33 inclusive of
the Act. Section 25 exempts from the operation of Pt. II "(a) any vehicle the load capacity of which
(together with any trailer for the time being attached thereto) is not more than four tons; or (b) any
vehicle while being used solely for any or some of the purposes specified in the Third Schedule or
while travelling unladen directly to or from the business premises of the owner of the vehicle so as
to be so used or after having been so used." Section 26 which is the charging section is in the
following terms: "(1) The owner of every commercial goods vehicle shall as provided by this Part
pay to the Board towards compensation for wear and tear caused thereby to public highways in
Victoria a charge at the rate prescribed in the Fourth Schedule. (2) 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 this Part provided. (3) Any charge payable under this Part shall be a civil debt due
to the Board by the owner of the vehicle concerned and, without affecting any other method of
recovery provided by this Part, may be recovered in any court of petty sessions as a civil debt
recoverable summarily or in any court of competent jurisdiction." Sections 27 to 29 require the
owner of the vehicle to keep an accurate daily record of all journeys of the vehicle along public
highways in Victoria and within fourteen days of the end of each month to forward to the head
office of the board in Melbourne in respect of each vehicle the record for the previous month and
the amount of all moneys owing by way of charges payable in respect of that month. Section 30 is
in the following terms: "(1) All moneys received by the Board by way of charges under this Part
shall be paid into the Country Roads Board Fund to the credit of a special account to be called the
'Roads Maintenance Account'. (2) 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 31
creates certain offences, one offence being failure to pay to the board as required by Pt. II any
charges payable in respect of any vehicle. Section 32 relates to prosecutions for an offence and to
the recovery of any charges which have not been paid to the Board. Section 33 contains certain
evidentiary provisions. The third and fourth schedules are in the following terms: "Section 25, Third
Schedule, (1) The carriage of berries and other soft fruits, unprocessed market garden and orchard
produce (other than potatoes and onions), milk, cream, butter, eggs, meat, fish or flowers, and, on
the return trip, any empty containers used on the outward trip for the carriage of any such
commodity. (2) The carriage of livestock to or from agricultural shows or exhibitions, or direct from
farm to market or from market to farm or from farm to farm or to or from agistment. Section 26,
Fourth Schedule, (1) The rate of the charge to be paid in respect of every vehicle shall be one-third
of a penny per ton of the sum of - (a) the tare weight of the vehicle; and (b) forty percentum of the
load capacity of the vehicle - per mile of public highway along which the vehicle travels in Victoria.
(2) In assessing such charge fractions of miles and fractions of hundred-weights shall be disregarded
but hundred-weights (in relation to both tare weight and load capacity) shall be taken into account as
decimals of tons." (at p65)

5. Part II therefore consists of s. 25 exempting certain commercial goods vehicles from its
operation; s. 26 which requires the owner of every commercial vehicle to pay to the board towards
compensation for wear and tear caused thereby to public highways in Victoria a charge at the rate
prescribed in the fourth schedule; s. 30 which provides that all moneys received by the board by
way of charges under this part shall be paid into a special Roads Maintenance Account and that the
moneys to the credit of that account shall be applied only to the maintenance of public highways;
and certain incidental sections required to make the charges imposed by s. 26 effective. The fourth
schedule is important because it prescribes the rate of charge. The charge is on a ton-mile basis and
the schedule provides a simple formula which enables the owner of the vehicle to calculate the
amount of the charge with precision. Part II of the Commercial Goods Vehicles Act like the
previous Victorian Act which was held invalid in Armstrong v. State of Victoria [1955] HCA 26;
(1955) 93 CLR 264 has the merit of simplicity but it has also the merit of clarity which that Act
lacked. The operator, intra-State or inter-State, knows exactly what he has to do in order to comply
with its provisions. It also has the merit that its provisions cannot cause any delay in the making of
the inter-State journey. No permit is required to cross the Victorian border and no moneys have to
be paid as a condition precedent to the vehicle's entering or leaving Victoria. The legislation is of a
general character. It does not discriminate against inter-State trade. It applies to all commercial
vehicles using the Victorian highways not exempted by s. 25, whether on an intra-State or an inter-
State journey. The same vehicles are exempted from the charge, whether they are travelling intra-
State or inter-State. If their load capacity is not more than four tons, or if they are engaged in the
carriage of the goods or chattels referred to in the third schedule, they are exempt. Accordingly the
legislation on its face embodies all the characteristics which the majority of this Court considered
legislation imposing a charge should embody in order to comply with s. 92. Part II is headed
"Contributions to Road Maintenance". Section 26 states that the contribution is towards
compensation for wear and tear caused by the vehicle to public highways in Victoria. These
statements by the Parliament of Victoria are not of course conclusive upon a question of
constitutional validity but they are entitled to respect and should not lightly be disregarded:
Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at pp 200,
201, 224, 225 ; Abitibi Power & Paper Co. Ltd. v. Montreal Trust Co. (1943) AC 536, at p 548 .
Where the plaintiff alleges that legislation is invalid because it infringes s. 92 the burden must be on
him prima facie to prove the invalidity. The invalidity may and generally does appear from the
provisions of the legislation itself. But in the present case the legislation on its face is valid. It
purports to charge the owner of the commercial goods vehicle only for the use he actually makes of
the Victorian highways. It is a charge on a ton-mile basis calculated upon a formula which is
reasonable on its face. In the joint judgment of Dixon C.J., McTiernan and Webb JJ. in Hughes &
Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the
following passage appears: "Prima facie it" (that is the legislation imposing the charge) "will present
that appearance" (that is the appearance of a real attempt to fix a reasonable recompense for the use
of the highway) "if it is based on the nature and extent of the use made of the roads (as for example
if it is a mileage or ton-mileage charge or the like); if the proceeds are devoted to the repair, upkeep,
maintenance and depreciation of relevant highways, if inter-State transportation bears no greater
burden than the internal transport of the State and if the collection of the exaction involves no
substantial interference with the journey. The absence of one or all of these indicia need not
necessarily prove fatal, but in the presence of them the conclusion would naturally be reached that
the charge was truly compensatory" (1955) 93 CLR, at pp 175, 176 . Williams J. said: "It does not
appear to me that a charge could be imposed which would not enter the deterrent field which was
more than a reasonable charge for the use of the road over which the vehicle, having regard to its
size and weight and other characteristics, intends to travel and it appears that the charge to be
reasonable would have to be based mainly upon the extent of the wear and tear the road would be
likely to suffer from the projected journey. All traffic, light or heavy, presumably causes some wear
and tear to the roads, but presumably also the heavier the vehicle the more wear and tear that is
caused to the roads. It is for the cost of this extra wear and tear, if any, that it would be reasonable to
charge. It is probably not susceptible of any precise calculation. But an approximation should be
possible. The onus would be on the plaintiff to prove that the charge was unreasonable and the court
would be disinclined, I should think, to upset any charge that was reasonable on its face and
supported, if challenged, by a calculation based on some appropriate formula" (1955) 93 CLR, at pp
194, 195 . Fullagar J. said: "Any such charge, to be valid, must not discriminate against inter-State
traffic, and some real connection - some relation of quid pro quo - must appear between the charge
and the maintenance of the roads. Subject to those two points, I think that a fair degree of latitude
must be allowed in prescribing the incidence of a charge, and that practical considerations attending
the collection of a charge must be borne in mind in considering its validity" (1955) 93 CLR, at p
211 . The statements in these passages were not of course intended to lay down rigid rules for the
calculation of the charge. They were intended to indicate the general character of a charge that could
be upheld. They should not be read as though they were the provisions of a statute. Applying the
indicia there stated in this manner it is apparent, I think, that the plaintiffs are unable to shift the
initial onus of proof by resorting to the provisions of Pt. II of the Commercial Goods Vehicles Act.
The legislation on its face exhibits all the characteristics required to indicate that the charge imposed
is prima facie no more than it is claimed to be by s. 26, that is, a contribution towards compensation
for the wear and tear caused by the vehicle to public highways in Victoria. (at p67)

6. But that is not the end of the case. However reasonable the charge may appear to be on its face
the ultimate question must be whether it is in fact reasonable at the time it is imposed. The owner
may be required to pay a sum which could not in fact bear any real relation to the wear and tear
caused to the highways by the particular journeys. In that case the charge could not be reasonable
compensation for the damage suffered and would impose an undue burden on inter-State trade. The
relation between the amount of the charge and the damage done to the highways must therefore be
examinable. In the present action evidence was given on this issue. It proves to my mind that the
amount of the charge produced by the operation of the formula in the fourth schedule is in fact
reasonable. I shall not refer to the evidence in any detail. It consists mainly of the estimates
contained in exhibit 1 and exhibit B and the oral evidence of Mr. Hosking the planning and research
engineer of the Country Roads Board of Victoria. These estimates show that the annual sum
required to maintain the whole of the Victorian roads in proper order and repair in the year 1954-
1955 was 15,148,000 pounds. The whole of this sum was not in fact expended. Only 12,648,000
pounds was spent and a further expenditure of 2,500,000 pounds was required to complete the work.
The total length of the Victorian roads is 80,000 miles of which 3,850 miles are classed as State
highways and 9,789 miles as main roads. The expenditure required for the maintenance of State
highways was at the rate of 560 pounds per mile and the expenditure required for the maintenance
of main roads at the rate of 325 pounds per mile. The expenditure required for the maintenance of
the whole of the Victorian roads was 190 pounds per mile. Exhibit 1 divides the total number of
motor vehicles registered for Victoria in March 1955, that is 559,000, into ten classes which can
broadly be divided into two sub-classes, the first sub-class comprising private cars, business cars,
trucks with a nominal carrying capacity of under two tons and trucks with a nominal carrying
capacity of two to three tons and the second sub-class comprising (e) trucks with a nominal carrying
capacity of three to four tons, (f) trucks with a nominal carrying capacity of four to five tons, (g)
trucks with a nominal carrying capacity of five to six tons, (h) trucks with a nominal carrying
capacity of more than six tons, (i) semi-trailers and (j) 'buses. There are 34,000 vehicles in classes
(e) to (j). These classes comprise the vehicles the weight of which causes considerably more damage
to the roads than vehicles in the first sub-class and this damage increases rapidly as the weight
increases. After an examination of the estimated average annual mileage of vehicles in each class,
the average gross weight of vehicles in each class, the average load carried by vehicles in each class
expressed as proportion of load capacity and the cost of construction of roads designed to carry (a)
axle loads in excess of 8,000 lbs. and up to 17,000 lbs. (the highest permissible load in Victoria) and
(b) axle loads up to 8,000 lbs., it was estimated that the maintenance costs attributable to vehicles
with permissible axle loads in excess of 8,000 lbs., that is the vehicles in classes (e) to (j), was 62%
of 15,148,000 pounds, that is 9.4 millions. But the only vehicles subject to the charge imposed by s.
26 of the Commercial Goods Vehicles Act are those in classes (f) to (i) inclusive and of this 9.4
millions 7.4 millions is attributable to the vehicles in these classes. After allowing for the amounts
paid by the Commonwealth to the State of Victoria under the Federal Aid Roads Act towards the
construction and maintenance of Victorian roads (half this amount being allocated in the estimates
to maintenance and the other half to construction) and for the registration fees payable under the
Motor Car Acts the amount of maintenance cost expressed as pounds per vehicle in each class was
for class (e) 121 pounds, (f) 156 pounds, (g) 248 pounds, (h) 296 pounds, (e) 486 pounds and (j)
346 pounds. These amounts expressed in pence per ton-mile were (e) 0.37, (f) 0.37, (g) 0.38, (h)
0.39, (i) 0.41 and (j) 0.39. As a third of a penny per ton-mile is 0.33 and this figure is below any of
these amounts it cannot be said that one-third of a penny per mile is an unreasonable amount to
include in the fourth schedule. Exhibit 1 shows that the amount actually collected under Pt. II of the
Commercial Goods Vehicles Act for the period 1st April 1956 to 28th February 1957 was 1,083,182
pounds and that it was estimated that the amount which would be collected in the first twelve
months of the operation of the legislation if all due payments were made in accordance with the Act
was 2,015,000 pounds. As the total expenditure required for the maintenance of the Victorian roads
was 15,148,000 pounds the truth of the statement in s. 26 of the Commercial Goods Vehicles Act
that the charge is towards compensation for wear and tear caused by vehicles to public highways in
Victoria becomes very apparent. And it becomes even more apparent when a dissection of the 7.4
millions of the expenditure for maintenance attributable to the vehicles in classes (f) to (i) inclusive
indicates that after deducting from this sum the proper allowances for registration fees,
Commonwealth grants, estimated collections under s. 26 and estimated amounts for third schedule
exemptions, there remains a discrepancy of 3.9 millions, this sum representing the extent to which
damage done to the roads by the vehicles in these classes is not recouped from the charges imposed
by s. 26 and must be borne by the general revenues of the State. (at p69)

7. It was contended that the calculation of 15,148,000 pounds as the cost of maintenance of the
Victorian roads was excessive because several items were included in this sum which should not be
there. In the first place it was objected that 2,500,000 pounds should not have been included because
it was not spent but to my mind it was rightly included because the inquiry is what amount is
required to make good the damage done to the roads and in this inquiry the whole amount required
to make good this damage should be included whether it has been actually spent or not. Exhibit B
contains a dissection of the amount actually expended, 12,648,000 pounds, between the road-
making authorities, that is to say, the Country Roads Board, the Greater Melbourne Municipalities,
other municipalities, and other government authorities. This dissection shows that 6,176,000 pounds
was expended by the Country Roads Board, 2,650,000 pounds by Greater Melbourne
Municipalities, 3,430,000 pounds by other municipalities and 392,000 pounds by other government
authorities. It was objected that the moneys spent by the municipalities on keeping the roads in
repair within their geographical areas was primarily their responsibility and payable out of the rates
and should not have been included in the calculation. But it is obvious that this item was rightly
included. There is no less reason why a contribution should not be made towards the expenses
incurred by municipalities in making good the damage done to their roads than there is why a
contribution should not be made to the Country Roads Board to make good the damage done to the
State highways and main roads for the maintenance of which it is responsible. Exhibit B also shows
that included in the sum of 12,648,000 pounds is the sum of 1,906,000 pounds said to be the
estimated cost of that portion of reconstruction costs necessary for maintaining a reasonable running
surface with present grading alignment and width. It was objected that this item should not have
been included in the calculation. It was submitted that the only maintenance towards which the
inter-State carrier could be called upon to contribute was in effect keeping the existing surface in
repair and if the damage was such that the existing surface could not be repaired and the road had to
be reconstructed the expenditure required for this purpose was a capital cost and could not be
charged against maintenance. But the whole of the cost of reconstruction is not included in the
estimate of 15,148,000 pounds but only part of that cost based on an estimate of the expenditure
necessary to maintain a reasonable running surface on the highway as originally constructed. The
expenditure towards which the inter-State carrier may reasonably be expected to contribute is at
least the expenditure necessary to maintain the road in such a condition that he may use it and if a
portion of the road becomes unusable until it is reconstructed the expenditure necessary to carry out
this reconstruction is, I should think, part of the expenditure required to maintain the road in this
condition. But in the estimate he has only been charged with part of this expenditure, that is with the
"maintenance element", so that in this respect he has nothing to complain about. Another objection
to the calculation was that it takes into account the whole network of State highways whereas it
should only have taken into account what the passage already cited from the joint judgment
designates as "relevant highways". No doubt the inter-State carrier mainly uses the principal inter-
State highways in the course of his business. But he has to collect the goods he carries somewhere
and deliver them somewhere and for these purposes he may require to use any part of the State
network. Section 92 protects the freedom of the inter-State trader to use every road in the State. In
such a calculation therefore it is reasonable to take into account this network as a whole. The
formula in the fourth schedule provides that forty per cent of the load capacity of the vehicle shall
be added to the tare weight of the vehicle and the one third of a penny per ton shall be multiplied by
this addition. Vehicles may often carry a load which is lighter than their total load capacity either
because they may not be fully loaded or if fully loaded the goods may be light in weight. They may
sometimes have to make the return journey empty. The inclusion in the multiplier of only forty per
cent of the load capacity would appear to provide a reasonable margin for such contingencies. It
must be emphasised that a charge for the use of the roads in order to be compensatory need not be a
precise calculation of the amount of the exact damage done to a particular road on a particular
journey by a vehicle of a particular weight carrying a particular load. Calculations as precise as this
would be impossible. They would require a separate calculation of the expenditure required to
maintain each road or at least each class of road in good repair and might require the vehicle to go
from one weighbridge to another to weigh its load from time to time. Charges based on such
calculations could become intolerably complicated and the journey of a vehicle which had to be
continuously weighed could be indefinitely delayed. The passages from the judgments already cited
stress the fact that the charge need not be precisely calculated. It is lawful if it is broadly calculated
to provide reasonable compensation for the average damage done to the roads by vehicles carrying
average loads. It was also objected that in the calculations all sorts of other items should have been
taken into account, for instance the direct taxes such as income and pay roll taxes and the indirect
taxes resulting from customs and excise duties imposed on petrol, tyres and tubes that inter-State
operators have to pay. It was even objected that road transport contributes to the prosperity of the
community though the precise amount of the contribution is immeasurable but that some credit
should be given for this item in the computation of a reasonable charge. Contentions such as these
illustrate the extent to which the plaintiffs are prepared to go. Taxes whether direct or indirect of the
kind mentioned have nothing to do with the amount required to maintain the highways of a State in
a proper condition of repair. It is the expenditure directly required for this purpose and no other
expenditure that is relevant. The contribution the inter-State carrier may be required to make to the
upkeep of the roads if otherwise reasonable cannot become unreasonable because he incurs other
expenses in the course of his business. The only question is whether he is being charged a
reasonable sum for the use he makes of a facility provided by the State which he is entitled to use as
of right but without which he could not carry on his business at all. It was contended that one reason
why the obiter dicta of the majority judges should be abandoned was that it is really impracticable to
calculate a reasonable charge. The weather it was said contributes to the wear and tear of the roads
and it was contended that this was wear and tear which could not be measured. In my opinion it
need not be measured. The operation of s. 92 does not depend on the weather. It protects the right of
the inter-State carrier to use the roads in all weathers. The evidence is that it is not the weather but
the use of the roads in wet weather that really causes the damage and there is no suggestion that
inter-State operators take care not to cause this damage by suspending their journeys whenever it
rains. (at p72)

8. It was even contended that s. 26 of the Commercial Goods Vehicles Act is in reality not a fixation
of a charge for wear and tear done to the roads but an integral part of a railway protection Act. The
contention was based on the fact that s. 25 exempts certainvehicles from the operation of Pt. II. It
was said that the goods and live stock included in the third schedule were not suitable for carriage
by railway and only suitable for carriage by road and that goods carried by vehicles of not more
than 4 tons load capacity were in the same category. There is no evidence to warrant such a
contention. Many of the goods in the third schedule are goods which would appear to be quite
suitable for carriage by railway and the railways are certainly suitable for the carriage of live stock.
There is no reason why the railways should not carry many of the goods that could be carried by
vehicles with a load capacity of not more than four tons. The reason for the exemptions in s. 25 does
not appear. But if a State is permitted by s. 92 to make a reasonable charge as compensation for the
use of the roads there is no reason why it should not exempt certain vehicles from the payment of
the charge provided the contributions lost by the exemptions are not loaded onto those who are not
exempt and provided there is no discrimination against inter-State trade. The amount of the
contributions lost by the exemptions is estimated only to be 335,000 pounds. It may be that the
vehicles that are not exempted by s. 25 and are therefore brought into charge by s. 26 include most
of the vehicles which carry goods in competition with the goods the railways prefer to carry. But the
fact that the position of the railways in this competition is improved by making these vehicles
contribute to the maintenance of the roads is not a ground for invalidating the legislation if the
charge is properly related to the use of the roads. (at p73)

9. Finally it was objected that the charge imposed by s. 26 of the Commercial Goods Vehicles Act is
of indefinite duration so that, even if it is reasonable at the present time, it may become
unreasonable in the future if improved methods of road construction and maintenance and more
suitable tyres and such like inventions lessen maintenance costs. It was contended that if Pt. II of the
Act is now held to be valid it could never subsequently become invalid however much
circumstances may change because there is no room for a legal theory that valid acts can become
invalid or vice versa because of changed facts. Therefore the legislation imposing the charge must
be invalid ab initio and the fact that the legislation is permanent is fatal to its validity. But an Act
must be valid, at least temporarily, if it is valid when it is passed. If a valid Act can never
subsequently become invalid so much the worse for the plaintiffs. I can see no reason why an Act
which is valid may not subsequently become invalid from change of circumstances. A
Commonwealth Act passed at the height of hostilities which could only be justified by the defence
power as extended in wartime would in my opinion become invalid when that power had contracted
in peacetime to such an extent that it is no longer wide enough to support it; Australian Woollen
Mills Ltd. v. The Commonwealth [1944] HCA 37; (1944) 69 CLR 476, at pp 499, 500 ; Australian
Textiles Pty. Ltd. v. The Commonwealth (1945) 71 CLR 161, at pp 180, 181 and R. v. Foster [1949]
HCA 16; (1949) 79 CLR 43 . We are here concerned with a State Act and a State Act valid at its
inception can subsequently be invalidated under s. 109 of the Constitution by a paramount
Commonwealth law. Having regard to s. 2 of the Acts Interpretation Act 1930 (Vict.) Pt. II of the
Commercial Goods Vehicles Act could not be invalid at its inception or subsequently become
invalid in its application to intra-State trade. It could only be invalid in its application to inter-State
trade. If the charge imposed by s. 26 is reasonable under present circumstances and therefore does
not infringe s. 92 the legislation must at present be valid in its application to inter-State trade. But if
circumstances changed to such an extent that a charge which was reasonable at its inception became
unreasonable in the future - if for instance some invention enabled a State to construct a network of
roads that required no maintenance - a charge imposed on inter-State operators as a contribution to
wear and tear which was no longer taking place could not continue to be supported as
compensatory. It is a case of an Act intended to be permanent dying because it has been smitten by a
superior law. (at p74)

10. For these reasons I agree with the order proposed by the Chief Justice. (at p74)

WEBB J. In this case directed by Taylor J. under s. 18 of the Judiciary Act 1903-1955 to be argued
before the Full Court of the High Court the plaintiffs, who are hauliers by motor transport in the
inter-State trade, and associations of such hauliers, seek declarations that provisions of Acts of the
Victorian Parliament, namely the Commercial Goods Vehicles Act 1955 (No.5931) and the Motor
Car Acts (Nos. 5616 and 6038), are unconstitutional and invalid as infringing s. 92 of the
Commonwealth Constitution, the former Act because it imposes a road charge purporting to be
limited to the wear and tear of the roads caused by the vehicle and the latter Acts because they
impose registration fees based on the use of the roads by the vehicle. Both the charge and the fee
purport to be applicable to inter-State and intra-State hauliers in respect of all roads in Victoria. (at
p74)
2. The validity of a specified kind of road charge payable by inter-State hauliers is supported by the
views of a majority of this Court as at present constituted in Hughes & Vale Pty. Ltd. v. State of
New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 . But the plaintiffs submit, as is the
fact, that the expression of those views was unnecessary for the disposal of the demurrer in that
case, and that this Court should not regard itself as bound by those views but should apply the views
of the minority justices who thought that no road charge of any kind could validly be imposed as
against inter-State hauliers. I must say that I do not find it easy to adhere readily to the vies that I
shared in the joint judgment with the Chief Justice and McTiernan J. in Hughes & Vale Pty. Ltd. v.
State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 in upholding the validity of
a specified type of road charge. That is because of the undoubted fact that s. 92 prevents any haulier
from being required to pay any charge for the right to enter upon and use the public roads on any
inter-State journey and use necessarily causes wear and tear of roads, and so might appear to
preclude this charge. However I do adhere to the views in the joint judgment. Moreover, public
safety demands that inter-State hauliers should have responsibility for the costs of repair of roads as
well as of vehicles and that the burden of keeping roads safe should not be wholly borne by others.
(at p74)

3. But the plaintiffs submit further that the requirements of a valid road charge as set out in the
majority judgments, and more particularly in the joint judgment, are not met in the Commercial
Goods Vehicles Act 1955. (at p75)

4. The relevant passage in the joint judgment reads: - "For the purposes of that provision" (i.e. s. 92)
"it may perhaps be said with some confidence that if a charge is imposed as a real attempt to fix a
reasonable recompense or compensation for the use of the highway and for a contribution to the
wear and tear which the vehicle may be expected to make it will be sustained as consistent with the
freedom s. 92 confers upon transportation as a form of inter-State commerce. But if the charge is
imposed on the inter-State operation itself then it must be made to appear that it is such an attempt.
That it is so must be evident from its nature and character. Prima facie it will present that
appearance if it is based on the nature and extent of the use made of the roads (as for example if it is
a mileage or ton-mileage charge or the like); if the proceeds are devoted to the repair, upkeep,
maintenance and depreciation of relevant highways, if inter-State transportation bears no greater
burden than the internal transport of the State and if the collection of the exaction involves no
substantial interference with the journey. The absence of one or all of these indicia need not
necessarily prove fatal, but in the presence of them the conclusion would naturally be reached that
the charge was truly compensatory . . . . In speaking of 'relevant highways' it is intended to mark the
importance of recognizing the size of Australian States . . . . It is for the use of certain roads that it
is supposed the recompense is made, and not for the use of roads of an entirely different character
many hundreds of miles away. It may of course be immaterial, if the charge is based on average
costs of road care, repair and maintenance, which may well give a lower rate than if it were based
on the costs in connection with the highway used. It does not seem logical to include the capital cost
of new highways or other capital expenditure in the costs taken as the basis of the computation. It is
another matter with the recurring expenditure incident to the provision and maintenance of roads.
The judgment whether the charge is consistent with the freedom of inter-State trade must be made
upon a consideration of the statutory instrument or instruments by and under which it is imposed.
The fault with s. 18 (4)-(6)" (i.e. of the New South Wales Act then under consideration) "is that
these provisions confer an authority which ex facie gives no assurance that the charge imposed
under it will conform with what amount to constitutional necessities . . ." (1955) 93 CLR, at pp 175,
176 (at p75)
5. The material provisions of the Commercial Goods Vehicles Act and the Motor Car Acts are-

(1) the Commercial Goods Vehicles Act by s. 2 defines commercial goods vehicle as any motor car

together with any trailer which is used or intended to be used for carrying goods for hire or reward,

with specific exceptions. Part II of the Act is headed "Contributions to Road Maintenance" and

includes ss. 25 to 33. Section 25 provides that Pt. II shall not apply with respect to any vehicle the

load capacity of which (together with any trailer for the time being attached thereto) is not more

than four tons; or to any vehicle while being used solely for any or some of the purposes specified

in the third schedule. Section 26 provides that the owner of every commercial goods vehicle shall

pay to the Transport Regulation Board under the Transport Regulation Act 1955 towards

compensation for wear and tear caused thereby to public highways in Victoria a charge at the rate

prescribed by the fourth schedule; 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 provided; and any

charge shall be a civil debt due to the board by the owner of the vehicle. Section 27 provides that

the owner shall keep an accurate daily record of all journeys along public highways in Victoria and

shall retain it for six months after completion of any journey and on demand make available to the

board a copy of each record for inspection. Section 28 provides that the owner shall not later than

the fourteenth of each month deliver to the board the record for the previous month and of the

charges owing if not already paid. Section 29 provides that the owner may arrange with the board as

to the time and place for paying charges. Section 30 provides that all moneys received by the board

by way of charges shall be paid into the Country Roads Board Fund to the credit of a special

account to be called "Road Maintenance Account"; and that moneys to the credit of that account

shall be applied only on the maintenance of public highways (including grants to municipalities for

that purpose). Section 31 makes failure to keep and deliver records or pay charges an offence

punishable by fine and by s. 32 the court may order payment of the road charges in addition to the

fine. Section 33 enacts evidentiary provisions. The fourth 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 the sum of the

tare weight of the vehicle and forty per cent of the load capacity of the vehicle per mile of public

highway  along  which  the  vehicle                             travels  in  Victoria.

(2) the Motor Car Acts by s. 3 defines motor car as meaning any vehicle propelled by internal
combustion, steam, gas, oil, electricity or other power and used or intended to be used on any
highway, and by s. 6 provides that every motor car and every trailer attached shall be registered by
the Chief Commissioner of Police and that a fee as provided in the second schedule to the Acts shall
be paid on registration or renewal of registration. The second schedule provides that for a motor car
used for carrying goods for hire or in the course of trade (with specified exceptions) the fees shall be
amounts ranging from six shillings to ten shillings and three pence for each power-weight unit,
varying according to the number of wheels and the types of tyres. It also prescribes the method of
determining the power-weight units. These fees are very substantial, in some cases exceeding 100
pounds per annum. (at p77)

6. I proceed to state my views on these two statutes. (at p77)

7. As to the Commercial Goods Vehicles Act: The question whether the road charge is valid must be
decided upon a consideration of the Act itself which on its face must give an assurance that the
charge conforms with constitutional necessities. That is required by the joint judgment as I
understand it. The good faith of any Australian Parliament cannot be questioned. But it is one thing
to refrain from questioning good faith and quite another to attribute infallibility. We are not at
liberty to take for granted everything that Parliament says even if we desired to do so. When as here
we are considering whether an Act of Parliament is constitutional on its face we are required to find
in its terms and not elsewhere an assurance that it is constitutional. So I thought when I adhered to
the joint judgment and nothing has since occurred to induce me to change that opinion. I find it
difficult to see how anything short of an assurance on the face of the Act could meet constitutional
requirements, as otherwise the test of constitutionality would be transferred from the Act to
something purporting to be done under the Act. But the validity of what purports to be done under
the Act could in turn be determined only from a consideration of the terms of the Act which for this
purpose must be precise and imperative. A road charge must have statutory authority and be within
it, and in turn the statute imposing the charge or giving the authority must comply with the
Commonwealth Constitution. So we are again thrown back on the Act itself in considering the
constitutionality of the road charge. As to this a statutory provision directing even a reasonable
charge has been held by this Court to be too indefinite: Hughes & Vale Pty. Ltd. v. State of
Queensland (1955) 93 CLR, at p 258 . The Commercial Goods Vehicles Act would appear to be at
least consistent with the joint judgment in so far as it purports to impose a charge only for a
contribution towards wear and tear of roads, is based on the extent of the use of the roads, being a
ton-mileage charge, the collection of the charge involves no interference with the journey, and the
proceeds are to be applied only to maintenance of public highways. But the Act fails to comply with
the joint judgment in that it does not on its face give an assurance that it conforms to constitutional
requirements, seeing that there is nothing in the Act which shows how the multiplier one-third of a
penny per ton is arrived at. If the figure were one-third of a shilling the reasoning in support of an
assurance ex facie would necessarily be the same, which negatives any such assurance. Again there
is no assurance on the face of the Act that only the cost of maintenance of relevant highways is
taken into account in assessing the charge or that the cost of maintenance of public roads generally
is not greater than the cost of maintenance of relevant highways. A further objection is that the
charge like the Act is of indefinite duration. As to this see Hughes & Vale Pty. Ltd. v. State of
Queensland (1955) 93 CLR, at p 258 . To conform to constitutional requirements the charge should
be limited always to the actual cost of maintenance so far as that is practicable. Really to comply
with the joint judgment the Act should contain a formula for ascertaining wear and tear on relevant
highways and supply the figures or indicate the source of the figures for the calculation, and provide
also for reviews say quarterly, half-yearly or annually to insure that the road charge will never
substantially exceed maintenance cost of the relevant highways. (at p78)

8. It may be that the Act complies with the requirements of the judgments of Williams J. and
Fullagar J. in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955)
93 CLR 127 . Williams J. said: - "All traffic, light and heavy, presumably causes some wear and tear
to the road, but presumably also the heavier the vehicle the more wear and tear that is caused to the
roads. It is for the cost of this extra wear and tear, if any, that it would be reasonable to charge. It is
probably not susceptible of any precise calculation. But an approximation should be possible. The
onus would be on the plaintiff to prove that the charge was unreasonable and the court would be
disinclined, I should think, to upset any charge that was reasonable on its face and supported, if
challenged, by a calculation based on some appropriate formula . . . " (1955) 93 CLR, at pp 194,
195 . In Armstrong v. State of Victoria [1955] HCA 26; (1955) 93 CLR 264, at p 284 his Honour
said that the formula must be prescribed by the legislation. (at p79)

9. Fullagar J. said: - "Any such charge, to be valid must not discriminate against inter-State traffic,
and some real connection - some relation of quid pro quo - must appear between the charge and the
maintenance of the roads. Subject to those two points, I think a fair degree of latitude must be
allowed in prescribing the incidence of a charge, and that practical considerations attending the
collection of a charge must be borne in mind in considering its validity" (1955) 93 CLR, at p 211 .
(at p79)

10. However, with great respect, I leave it to their Honours to decide whether the Commercial
Goods Vehicles Act provides for a valid charge, according to their views as expressed above. (at
p79)

11. As to the Motor Car Acts: I agree with the submission of the plaintiffs that the registration fees
are so large in some cases that they must be taken to be imposed for the use of the roads. This view
is supported by the definition of motor car in s. 3. But there is no statement in the Act, let alone any
assurance, that the fees are only a contribution towards wear and tear of the relevant highways, and
so the provisions for these fees are, like the road charges under the Commercial Goods Vehicles Act
contrary to s. 92 and invalid or at all events not applicable to inter-State hauliers and their motor
vehicles. (at p79)

12. I would make the declarations and grant the injunctions sought to the extent warranted by these
views. (at p79)

13. As to the extent and form of relief that should be granted, the provisions of both Acts have been
shown, in my opinion, to be inconsistent with s. 92 of the Commonwealth Constitution. In saying
that these provisions are invalid and I mean nothing more than that. But they are still applicable to
those hauliers who are not exclusively engaged in inter-State trade or commerce, and so no question
of severance arises, as I understand the meaning of "severance" as applied to legislation in part
invalid, that is to say, the cutting away of the invalid from the valid part of the enactment, which
process consists simply in striking out words, phrases, sentences, paragraphs, Divisions or Parts;
provided that what remains of the enactment is intelligible and is not a quite different enactment,
unless the legislature directs, as in s. 2 of the Victorian Acts Interpretation Act 1930 (No. 3930), that
the enactment as so modified shall nevertheless be a valid enactment, in which case the legislature is
still legislating and not attempting to delegate to the courts its power to legislate. See Reg. v.
Wilkinson; Ex part Brazell, Garlick & Coy [1952] HCA 6; (1952) 85 CLR 467, at p 485 . Then
what is called for here is a reading down and not a cutting down of the legislation, that is to say, the
reading of the provisions inconsistent with s. 92 so as to exclude their application to hauliers
engaged exclusively in inter-State trade or commerce. So in my opinion the declaration should
simply declare the road charges and registration fees respectively to be inapplicable to the plaintiffs
while exclusively engaged in inter-State trade or commerce, to avoid any possible oversight, without
specifying the particular inapplicable provisions by numbers or letters; and the injunction should be
framed likewise. (at p80)

14. It may well be that this will leave in doubt the position of inter-State hauliers under the Motor
Car Acts, which seems to me to be a system of registration based on the payment of fees. However
without hearing argument on the point I am not prepared to hold that the Court has the power, and
therefore the responsibility, and further can reasonably be sure of being able to elucidate, the
position of such hauliers following the declaration. Can we say that no registration fee of any kind,
even a nominal fee, may be imposed on inter-State hauliers? In Hughes & Vale Pty. Ltd. v. State of
New South Wales (No. 1) (1955) AC 241, at pp 297 et seq; (1954) 93 CLR 1, at pp 23 et seq the
Privy Council quoted, without expressing any dissent, that part of the judgment of Fullagar J., in
McCarter v. Brodie [1950] HCA 18; (1950) 80 CLR 432, at pp 495-499 in which his Honour
referred to the majority judgment in Willard v. Rawson [1933] HCA 12; (1933) 48 CLR 316 and
added that the requirements of the Motor Car Acts afforded a good example of what was
permissible, including provision for a registration fee "which on its face was not unreasonable".
Actually the fee was as heavy then as it is now, allowing for the depreciation of the currency in the
meantime. However, their Lordships had already observed that they had not been invited to review
Willard v. Rawson [1933] HCA 12; (1933) 48 CLR 316 , which by a majority, Dixon J., as he then
was, dissenting, sustained the validity of the registration fee. (at p80)

15. On the whole, but not without some hesitation, I think that further argument should not be
invited and that the Victorian Parliament should be left to deal with the situation that will arise out
of the proposed declaration, because, as far as I can see at this stage, it can do so as adequately by
amending legislation as this Court could hope to do by further interpretation. (at p80)

16. Since writing these reasons for judgment I have had the advantage of reading the proposed order
by the Chief Justice. As regards the relief that I would grant to the plaintiffs against the operation of
the Motor Car Acts I respectfully concur in the proposed order. (at p81)

FULLAGAR J. This is an action in which the plaintiffs in substance claim (a) a declaration that Pt.
II of the Commercial Goods Vehicles Act 1955 (Vict.) is invalid or inapplicable to vehicles engaged
in inter-State trade, and (b) a declaration that ss. 6 and 17 (a), (b) and (d) of the Motor Car Acts of
the State of Victoria are invalid or inapplicable to vehicles so engaged. The case comes before the
Full Court in pursuance of an order made by Taylor J., who, after hearing certain evidence, directed,
under s. 18 of the Judiciary Act 1903-1955, that the case be argued before the Full Court on that
evidence. (at p81)

2. Part II of the Commercial Goods Vehicles Act 1955 is headed "Contributions to Road
Maintenance". Section 25 provides that this Part of the Act shall not apply to any vehicle the load
capacity of which is not more than four tons, or to any vehicle while engaged solely in the carriage
of certain classes of goods. Section 26 (1) provides: - "(1) The owner of every commercial goods
vehicle shall as provided by this Part pay to the Board towards compensation for wear and tear
caused thereby to public highways in Victoria a charge at the rate prescribed in the Fourth
Schedule." The fourth schedule provides: - "1. The rate of the charge to be paid in respect of every
vehicle shall be 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 Victoria." Section 30 provides: - "(1) All moneys received by the Board by way of
charges under this Part shall be paid into the Country Roads Board Fund to the credit of a special
account to be called the 'Roads Maintenance Account'. (2) Money to the credit of that account shall
be applied only on the maintenance of public highways (including grants to municipalities for that
purpose)." The rest of Pt. II of the Act contains provisions for the keeping of records, the collection
of the charge, and other incidental matters. In terms Pt. II (unlike Pt. I, which deals with licences
and permits, and excludes from its operation vehicles engaged exclusively in inter-State trade)
applies without distinction to vehicles engaged in intra-State trade and vehicles engaged in inter-
State trade. The amount of the charge is recoverable as a debt, and non-payment is made an offence
by s. 30, but payment is not made a condition of the right to operate. (at p81)

3. The question whether a "charge" of this kind can, consistently with s. 92 of the Constitution, be
imposed in respect of vehicles engaged exclusively in inter-State carrying has already been fully
discussed and considered in this Court: see Hughes & Vale Pty. Ltd. v. State of New South Wales
(No. 2) [1955] HCA 28; (1955) 93 CLR 127 , per Dixon C.J. and McTiernan and Webb JJ. (1955)
93 CLR, at pp 171-179 ; per Williams J. (1955) 93 CLR, at pp 190-196 ; per Fullagar J. (1955) 93
CLR, at pp 208-211 ; per Kitto J. (1955) 93 CLR, at pp 218-225 and per Taylor J. (1955) 93 CLR, at
pp 235-240 . All the members of the Court were agreed in that case that the particular provisions
imposing "charges" then under consideration were invalid so far as they purported to apply to
vehicles engaged in inter-State trade. There was, however, a difference of opinion on the broad
general question whether a charge related to the use of roads could lawfully be imposed at all in
respect of vehicles so engaged. Kitto J. and Taylor J., differing from the other five members of the
Court, answered that question in the negative. The Court is now invited by counsel for the plaintiffs
to reconsider the general question and to adopt the view of the minority in Hughes & Vale Pty. Ltd.
v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 . It is emphasised that,
from the point of view of the minority, what their Honours said on the general question provided a
reason for the decision, whereas what was said by the other justices was, from their point of view, in
the nature of obiter dicta. (at p82)

4. It is no doubt technically correct to say that the views of the majority in Hughes & Vale Pty. Ltd.
v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 were expressed obiter.
But the whole matter was treated as a major question. It was fully considered, and I do not think it
should be reopened. For myself, I am of the same opinion now as I was then, although I am as
conscious now as I was then of the force of the criticism directed by Kitto J. at the view with which
his Honour disagreed. I would only repeat and emphasise that, in my opinion, public highways are
not rightly regarded for present purposes as "facilities" provided by a State for those who use them.
What is, in my opinion, permissible in relation to public highways is not the making of a charge for
the use of something which the State can at will allow or forbid to be used. What is permissible
(whether you call it a "compensation" or a "recompense" or what you will) is the exaction of a
contribution towards the maintenance of something which can be used as of right. The distinction is,
to my mind, both real and important. For, if what is permissible were of the former character, the
States must obviously be very much at large. If, on the other hand, what is permissible is of the
latter character, the powers of the States are defined, and the Courts have a power of investigation
and ultimate control, which can be exercised to prevent an infringement of s. 92, the final question
in each case being whether what is exacted is in truth and in substance, and is no more than, a
contribution towards the maintenance of public highways. I emphasise these matters partly because
I observe that the headnote to the report of Hughes & Vale Pty. Ltd. v. State of New South Wales
(No. 2) [1955] HCA 28; (1955) 93 CLR 127 speaks of charges for the use of highways, and partly
because I thought that part of the argument before us on the validity of the particular statute
proceeded on a wrong view of the real nature of the question at issue. For the rest, I refer to what I
said in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) (1955) 93 CLR, at p 208 . (at
p83)

5. Acceptance of the majority opinion on the general question in that case is, in my opinion,
decisive of the present case, and I can express my view very shortly. In the judgment of Dixon C.J.
and McTiernan and Webb JJ. it was said that, if a charge is imposed as "a real attempt to fix a
reasonable recompense or compensation for the use of the highway and for a contribution to the
wear and tear which the vehicle may be expected to make" (1955) 93 CLR, at p 175 , it will be
sustained as consistent with s. 92. That it is such an attempt, it was said, must be evident from its
nature and character. Their Honours then set out certain indicia, which, they said, might be accepted
as showing prima facie that it was such an attempt (1955) 93 CLR, at pp 175, 176 . Part II of the
Victorian Act has obviously been framed in the light of this passage, which was read several times
during the argument, and which need not be set out here. Every one of the indicia mentioned is
present here. The charge is based on ton-mileage, and is thus related on its face to the nature and
extent of the use made of roads. Section 30 of the Act requires all moneys received by the board to
be paid into the Country Roads Board Fund (established under the Country Roads Act) to the credit
of a special "Roads Maintenance Account", and money to the credit of that special account is to be
applied only to the maintenance of public highways. Inter-State transport bears no greater burden
than the internal transport of the State. And the collection of the charge involves no interference
with any inter-State journey. It is to be added that the charge is not shown to be quantitatively
unreasonable either in the sense of being out of proportion to the actual cost of maintenance or in
the sense of imposing a practically prohibitive burden. It is to be added also that the State adduced
evidence to show the actual basis on which the amount of the charge had been arrived at. Anything
even approximating to mathematical accuracy is obviously out of the question, but the evidence
does, I think, establish that there is what Frankfurter J. (in Capitol Greyhound Lines v. Brice [1950]
USSC 51[1950] USSC 51; ; (1950) 339 US 542, at p 550 (94 Law Ed 1053, at p 1059) ) has called
a "relationship between what is demanded and what is given by the State". It shows, I think, that
there has been a "real attempt to fix a reasonable recompense or compensation". (at p84)

6. The attack on ss. 6 and 17 of the Motor Car Act 1951 (Vict.) cannot, in my opinion, be sustained.
Section 6 requires all motor cars to be registered, and requires the payment on registration of the
fees set out in the second schedule. The schedule was amended so as to increase the fees by Act No.
6038 (1956). Section 17 forbids the use on a highway of an unregistered motor car. Regulation 59 of
the Motor Car Regulations exempts from the requirement of registration in Victoria motor cars
which are registered in another State and come temporarily into Victoria. (at p84)

7. Provisions requiring the registration of motor cars have always been regarded as typical
"regulatory" laws, which offend in no way against s. 92, and the mere fact that a fee is charged on
registration cannot of itself take them into another category: see McCarter v. Brodie (1950) 80 CLR,
at p 495 . Laws which are on their face merely regulatory in this sense may turn out on investigation
to interfere with freedom of trade and to infringe s. 92. But no reason appears in the present case for
attributing any such character to the Victorian laws in question. No support for a contrary view can
be found in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) (1955) 93 CLR 127 . The
vice of the registration provisions held invalid in Collier Garland Ltd. v. Hotchkiss [1957] HCA 40;
(1957) 97 CLR 475 lay in the fact that registration could be refused at discretion. This feature is
absent from the Victorian legislation. (at p84)

8. The action should, in my opinion, be dismissed. (at p84)

KITTO J. In Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955)
93 CLR 127 I expressed as clearly as I could the view which then appeared to me to be correct on
the question whether a State law imposing charges in relation to the use of public roads can apply, in
the face of s. 92 of the Constitution, where the use is in the course of inter-State travel. Five
members of the Court disagreed with that view, and because the observations which their Honours
made on the topic, though obiter, were considered pronouncements, I have studied them with a
desire to accept and apply any principle which I could see commanded the approval of a majority of
the Court. (at p84)

2. Their Honours were necessarily speaking in abstract and somewhat general terms, and it may be
that notwithstanding what seem to me significant differences of expression there is a single
underlying conception. But if there is, I must confess that it has eluded me. If s. 92 prescribed
reasonableness in the statutory treatment of inter-State trade commerce and intercourse, there would
be no difficulty. But it prescribes absolute freedom; and that, I take it, includes absolute freedom in
the use of public roads. Indeed s. 92 virtually says as much by its reference to internal carriage.
When it is said that s. 92 assumes the existence of highways and that they are there for use
"according to the ordinary laws of the State" (1955) 93 CLR, at p 171 , I should interpret this to
mean (as applied to public highways which cannot be dealt with by the State on the basis of
property (1955) 93 CLR, at p 171 ) in accordance with such ordinary laws of the State as are
consistent with the existence of the guaranteed freedom in respect of the use of such roads for inter-
State travel. The nature of the freedom is of course another matter; and I understand that it is in a
consideration of the nature of the freedom that justification is seen for a doctrine which
distinguishes, in respect of the use of a road, between the movement - the travelling along the road -
and the wear and tear on the road which inevitably results from the travelling, and, while admitting
that a charge cannot be imposed in respect of the movement as such - the mere travelling - maintains
that a charge related to the wear and tear may be imposed. This is apart altogether from any question
as to a law requiring a road user to pay for the repair of specific damage which is identifiable as
having been caused by him in the course of inter-State travel, so that others may not be impeded by
that damage in their use of the same road. I am not sure whether the charge which it is said may be
made is considered to be justified as (1955) 93 CLR, at p 171 a recompense to the State for services
rendered to the road-user by the provision of whatever surfaces he may find as he makes his
particular jouney; or (2) a reimbursement of the cost which the State would incur if it were to make
good (a) the wear and tear caused by the particular traveller or a class of travellers to which he
belongs, or (b) the extra wear and tear caused by his vehicle, or the vehicles of the class to which he
belongs, over that which is caused by some other vehicles - irrespective, in either case, of whether
the State actually proceeds to make good that wear and tear or elects to spend the money on other
roads; or (3) a quid pro quo for the benefit which the particular traveller derives from the existence
of whatever surfaces they may be that he traverses. There are expressions in the judgments which
may be thought to support each of these ideas. But while each of them seems to me to present great
difficulties, difficulties standing in the way both of its acceptance and of its practical application,
my fundamental perplexity arises from this, that if it is conceded that a person enjoys a
constitutional immunity from all charges upon his going inter-State by road, I do not see how it can
be asserted, without contradicting the concession, that that person is not immune from a charge
imposed and measured by reference to an aspect, or a necessary incident or consequence, of his
going inter-State by road. Yet I cannot suppose that I would be right in understanding the judgments
as involving mutually repugnant propositions. It can hardly be that the judgment of Portia is being
paralleled. But why it would be erroneous to suggest that analogy is a question to which at present I
do not see the answer. I can hardly think it would be said that the freedom exists for the abstract
"going" which travel imports, but does not exist for the physical acts which constitute the inter-State
progression. Nor, I imagine, is it considered that what the State may charge for is the provision of
something over and above the roads which s. 92 assumes, for the distinction seems too clear
between improving the roads themselves and providing something additional to them. (at p86)

3. In this situation, since I am still of the opinion I expressed in the Hughes & Vale Case (No. 2)
[1955] HCA 28; (1955) 93 CLR 127 , I feel obliged to deal with the case before us in accordance
with that opinion. It follows that I must hold invalid, insofar as they would apply to vehicles
engaged in inter-State trade, both the sets of provisions which are attacked in these proceedings. (at
p86)

4. In relation to the evidence which has been adduced in support of the provisions of Pt. II of the
Commercial Goods Vehicles Act 1955 (Vict.) I desire only to say that I agree with the comments
which my brother Taylor J. will make upon that evidence, and agree with his conclusion as to the
true character of the charge imposed. The charge seems to me to be in truth, as his Honour says, "a
tax for general road maintenance", and I cannot reconcile its application to the plaintiffs, in respect
of their inter-State journeys, with their constitutional right to freedom of inter-State trade commerce
and intercourse. (at p86)
TAYLOR J. On the assumption that the question whether road charges may validly be imposed upon
and collected from persons operating commercial goods vehicles exclusively in the course of inter-
State trade now arises directly for decision for the first time and that the observations made
concerning this problem in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955]
HCA 28; (1955) 93 CLR 127 were, strictly, obiter I desire to reiterate what I then said and to
express my view that, for the reasons then given, the provisions of Pt. II of the Commercial Goods
Vehicles Act 1955 cannot validly apply to such persons. I do not, however, wish to suggest that the
views expressed in the reasons of those members of the Court with whom I differed on that occasion
were tentative or not formed after full argument yet, nevertheless, I find myself unable to perceive
in the observations of the majority of the Court any commonly accepted test for determining the
validity of any such charges or, indeed, any test other than broad and general statements of what is
or may be permissible. (at p87)

2. There was, of course, general agreement among the members of the Court who formed the
majority that s. 92 of the Constitution does not preclude the imposition of charges for the use of
public roads and highways by vehicles engaged exclusively in inter-State trade. But the initial
difficulty is to ascertain and identify the basis upon which it is said that this may legitimately be
done. In the joint judgment of Dixon C.J., McTiernan and Webb JJ., it was said that "if a charge is
imposed as a real attempt to fix a reasonable recompense or compensation for the use of the
highway and for a contribution to the wear and tear which the vehicle may be expected to make it
will be sustained as consistent with the freedom s. 92 confers upon transportation as a form of inter-
State commerce. But if the charge is imposed on the inter-State operation itself then it must be made
to appear that it is such an attempt. That it is so must be evident from its nature and character. Prima
facie it will present that appearance if it is based on the nature and extent of the use made of the
roads (as for example if it is a mileage or ton-mileage charge or the like); if the proceeds are
devoted to the repair, upkeep, maintenance and depreciation of relevant highways, if inter-State
transportation bears no greater burden than the internal transport of the State and if the collection of
the exaction involves no substantial interference with the journey" (1955) 93 CLR, at pp 175, 176 .
Williams J., on the other hand, expressed the view that "a State is free to make such a charge as will,
having regard to the benefit the carrier derives from the facility, not be an undue burden on him; and
a charge will not be burdensome providing, looking at the matter broadly, the benefit flowing from
the provision of the facility more than outweighs the burden flowing from the imposition of the
outgoing" (1955) 93 CLR, at p 194 . At a later stage he said:- " . . . that the charge to be reasonable
would have to be based mainly upon the extent of the wear and tear the road would be likely to
suffer from the projected journey" (1955) 93 CLR, at p 194 . "All traffic", he added, "light or heavy,
presumably causes some wear and tear to the roads, but presumably also the heavier the vehicle the
more wear and tear that is caused to the roads. It is for the cost of this extra wear and tear, if any,
that it would be reasonable to charge. It is probably not susceptible of any precise calculation. But
an approximation should be possible" (1955) 93 CLR, at p 194 . Fullagar J. was of the opinion that
persons using roads exclusively for the inter-State carriage of goods or passengers "may be called
upon to make a contribution towards the cost of maintaining something from which they may fairly
be regarded as deriving a benefit over and above that which is derived by the community as a
whole. In making such a contribution they are not really paying a price for their coming and going.
They are paying a price for something which makes their coming and going safer, easier, or more
convenient than it would be if the highways which they use were allowed to fall into disrepair or
decay" (1955) 93 CLR, at p 210 . But he foresaw serious difficulties in respect of both
quantification and incidence in attempting to fix a contribution which would be valid and he did not
endeavour to anticipate these difficulties except to say that any such charge in order to be valid must
bear some real relation to the maintenance of the roads and must not discriminate against inter-State
traffic (1955) 93 CLR, at p 211 . The general tenor of these observations leads me to think,
however, that what his Honour had in mind was a charge commensurate with the benefit which such
persons may be regarded as receiving over and above that which is received by the community as a
whole. (at p88)

3. Without attempting an examination of the ground, or grounds, upon which it was thought that the
right to make such charges may be reconciled with s. 92 of the Constitution it may be said that there
was some general agreement that the upper limit to road charges which may properly be exacted
from persons operating vehicles in the course of inter-State trade is fixed by the concept of
reasonableness. Fullagar J. did not use this expression but it would appear to be involved in his
statement that "some real connection - some relation of quid pro quo - must appear between the
charge and the maintenance of the roads" (1955) 93 CLR, at p 211 . But reasonableness, alone, is an
abstract concept and does not by itself provide a test for determining what charges may or may not
be made; it is a useful guide if, and only if, we are aware of the various matters which must be
considered when the necessity arises of determining whether particular charges are or are not
reasonable. Accordingly the joint judgment purports to specify those matters; the charge must
represent the result of "a real attempt to fix a reasonable recompense or compensation for the use of
the highway and for a contribution to the wear and tear which the vehicle may be expected to make"
(1955) 93 CLR, at p 175 and the various characteristics which will invest a charge with the
appearance of such an attempt are specified in the passage from the joint judgment already quoted. I
take the relevant passages in this judgment to mean that, in considering whether any particular
charge is reasonable, it is permissible to inquire whether it can be said to have been based upon
some pre-estimate of the damage which heavier vehicles are calculated to cause to the roads which
they use. Williams J., on the other hand appears to have adopted a less liberal view. After pointing
out that heavier vehicles presumably cause more damage to the roads than lighter traffic he added
that it was for the cost of the extra wear and tear that it would be reasonable to charge and, as
already mentioned, the same idea seems to underlie the observations of Fullagar J. (at p89)

4. In the present case the State of Victoria, it seems, has sought to base its legislation imposing the
statutory charges in question upon the views expressed in the joint judgment. It has purported to
impose on every vehicle of which the load capacity is more than four tons, a charge at the rate of
one-third of a penny per ton of the sum of the tare weight of any such vehicle and forty per cent of
its load capacity per mile of public highway along which any such vehicle may travel in Victoria
and it has sought to support the charge by evidence that the specified charge will provide no more
than a reasonable recompense or compensation for the use of the roads of the State by the vehicles
in respect of which the charges are imposed or, in the alternative, not more than a reasonable
contribution to road maintenance for the wear and tear caused to such roads by those vehicles. (at
p89)

5. It is, perhaps, not out of place at this stage to say that the defendants did not take up the position
that such evidence was needed to establish the validity of the statutory charge. But if the test is
whether, upon ascertainable criteria, the charge may be said to be reasonable it would, it seems to
me, be impossible to form a judgment on the critical question without evidence of the material
matters. I do not see how any court could, without evidence of those matters, characterise a charge
of one-third of a penny per ton-mile, or, for that matter, a charge of one-third of a shilling per ton-
mile, as reasonable or unreasonable. (at p90)

6. The gist of the evidence which was adduced in the case is contained in an exhibit which furnishes
a great deal of information concerning the number and classes of vehicles registered in Victoria
(559,000) their estimated average annual mileages and ton mileages, a comparison of the cost of
constructing and maintaining roads and highways for various classes of traffic and estimates of the
degree of damage done to roads by heavy vehicles, that is to say, vehicles having an axle load of
8,000 pounds or more, or, approximately, a carrying capacity in excess of four tons. It is
unnecessary to traverse the whole of this evidence but for the purposes of the observations which
will shortly be made it is desirable to refer to some of the details. Of the 559,000 vehicles said to be
registered in Victoria nearly 30,000 are vehicles having a carrying capacity of more than four tons
and some unspecified number of the latter class of vehicles is engaged exclusively in inter-State
trade. The roads of the State upon which vehicles registered in Victoria may lawfully operate extend
over 80,000 miles and of such roads 3,850 miles are State highways and 9,789 miles are classified
as main roads. The cost of the construction of roads designed to carry axle loads of up to 8,000
pounds is said to be twenty-three per cent less than the cost of roads designed for carrying heavier
traffic. Maintenance costs, it is further said, should be apportioned on the same basis and the cost of
necessary maintenance to the roads of the State in the year 1954-1955 was expressed to be
15,148,000 pounds though the whole of this sum was not in fact spent. The annual ton-mileages of
the heavier vehicles is said to represent fifty-one per cent of the annual ton-mileages of vehicles
registered in Victoria and, up to a point, the exhibit referred to treats the degree of road damage
occasioned by different classes of vehicles as proportionate to ton-mileage. After, in effect, charging
against the heavier vehicles fifty-one per cent of seventy-seven per cent of the amount of
15,148,000 pounds the exhibit treats the remaining twenty-three per cent of that sum as attributable
solely to maintenance necessary as the result of damage done by the heavier vehicles. The result,
namely 9,400,000 pounds is said to be the cost of maintenance, during the year referred to, properly
attributable to the heavier vehicles and it appears, after adjustments to which it is unnecessary to
refer, that a rate of one-third of a penny per ton-mile imposed in respect of the heavier vehicles
would not quite recoup this sum. Therefore, it is said, the charges are no more than a reasonable
recompense or compensation for the use of the highways and for a contribution to the wear and tear
which such heavier vehicles may be expected to make. (at p91)

7. The computations to which I have referred contain a great deal of surmise and conjecture and,
perhaps, in some respects, represent even less than "a loose judgment in fixing a quid pro quo". But
I have no doubt that they represent, as far as it was possible to do so, an attempt to assess a
reasonable charge on the basis of the views expressed in the joint judgment. Nevertheless, I am
satisfied that they are insufficient to support the charges made by Pt. II. This opinion, I hasten to
add, is based upon a broad consideration of the character of the computations themselves rather than
upon criticism of the elements of surmise and conjecture upon which they may, in considerable
measure, be said to be based. (at p91)

8. The first observation which I wish to make is that I doubt whether the charges are based upon
considerations consistent with the views which commended themselves to Williams and Fullagar JJ.
They are not charges made for the extra damage done to the roads by heavier traffic nor are they
charges commensurate with any benefit which the owners of heavier vehicles may be said to receive
over and above that which is derived by the community as a whole; substantially, it may be said that
analysis of the exhibit discloses that the specified rate has been imposed in an attempt to recoup to
the State the cost of making good all wear and tear which, it is felt upon the assumptions made in
the exhibit, may fairly be said to be attributable to the heavier forms of traffic. (at p91)

9. But if, as was contended, a charge so based is not open to objection there are, in my view, other
reasons for holding that the evidence fails to establish that the charges which Pt. II of the Act seeks
to impose are not "reasonable" in any sense in which that expression has, so far, been used. In the
first place, it will be observed that one vital factor taken into consideration in making the
computations referred to is the cost to the State of maintaining some 80,000 miles of roads of all
classes. State highways and main roads, however, constitute little more than 13,000 miles of these
roads and there is nothing to give the slightest indication of the extent to which either these or other
roads of the State are used by inter-State traffic. Nevertheless the computations proceed on the basis
that it is fair and reasonable to make a charge against the owners of vehicles engaged in inter-State
traffic based upon maintenance costs for every mile of roadway in Victoria. At this stage the
computations, in my opinion, entirely break down for even if it may be said that charges may be
imposed upon vehicles operated in the course of inter-State trade to compensate for the damage they
occasion to the roads which they use, I find it impossible to accept the proposition that a general
charge for the maintenance of all roads throughout the State is compatible with s.92. Indeed, a rate
arrived at on this basis seems to wear, distinctly, the appearance of a tax for general road
maintenance rather than recompense or compensation, reasonable or otherwise, for the use of the
roads upon which such vehicles are operated. It is, I think, nothing to the point to suggest that this
objection is overcome by the fact that maintenance costs generally throughout the State have been
charged against all heavier vehicles wherever and for whatever purpose they may be used for we
have not the slightest idea of the respective quantities of heavy traffic on inter-State routes and other
roads. (at p92)

10. The matter is further complicated by the fact that the computations ignore a factor which was
most material in estimating both the percentage of road maintenance properly attributable to the use
both in intra-State and inter-State of heavy vehicles and to the striking of a proper rate of charge for
the purpose of recouping maintenance costs. As already appears the computed rate is based upon the
number of heavy vehicles registered in Victoria and they ignore altogether vehicles which, though
registered in other States, operate on Victorian roads in the course of inter-State trade. But the
statutory rate if valid will be imposed not only upon vehicles so registered but upon all other heavy
vehicles entering the State in the course of inter-State trade. If the omitted factor had been included
the percentage of maintenance costs considered appropriate to be recouped from the owners of
heavy vehicles may possibly have been higher but the rate of charge, itself, may well have been
much lower. In these circumstances it appears to me that the computations failed to take into
account matters which are vital to the question whether the charges are "reasonable" on any view
and they leave this question completely unsolved. Accordingly I feel obliged to say that the
evidence fails to satisfy me, upon any view that has so far been taken, that the exaction prescribed
by Pt. II is or can be said to be no more than "reasonable". Particularly is this so when it is seen not
only that the computations appear to spread road maintenance costs over a much too limited group
but that the result of the legislation will be to require the owners of heavier vehicles entering
Victoria from other States to make what is, in substance, a general contribution to road maintenance
throughout that State. (at p92)

11. The result, even it if be assumed that there is some constitutional basis for the imposition upon
inter-State traffic of road charges which, upon some denotation of the term, may be said to be
"reasonable", is, in my opinion, that the statutory provisions which impose the charges in question
must be held to have no application to persons operating vehicles exclusively in the course of inter-
State trade. (at p93)

12. The question whether the provisions of ss. 6 and 17 of the Motor Car Acts 1951-1956 can
wholly apply to vehicles used exclusively in the course of inter-State trade is, I think, conclusively
answered against the defendants by the decisions of this Court in Hughes & Vale Pty. Ltd. v. State of
New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 ; Nilson v. State of South Australia
[1955] HCA 31; (1955) 93 CLR 292 and Pioneer Tourist Coaches Pty. Ltd. v. State of South
Australia (1955) 93 CLR 307 , and I agree that the appropriate form of declaration which should be
made concerning these provisions is that proposed by the Chief Justice. (at p93)

ORDER

Declare that sub-s. (4) of s. 6 of the Motor Car Act 1951 (No. 5616) and sub-pars. (b) and (c) of par.
B of the second schedule as substituted by Act No. 6038 cannot apply to commercial goods vehicles
used on highways in Victoria not otherwise than in the course of trade and commerce among States
and in what is necessarily incidental thereto and that s. 17 cannot apply so as to make it an offence
for a person to drive a commercial goods vehicle exclusively so used without complying with the
requirement of s. 6 that the vehicle shall be registered and a fee shall be paid pursuant to sub-s. (4)
of that section.

Order that the plaintiffs pay the defendant's costs of the action except such costs as are exclusively
referable to the claim of the plaintiffs in relation to the invalidity of the application to the plaintiffs
of so much of the Motor Car Act 1951 as amended as requires the payment of the fees set out in the
second schedule of that Act on registration which costs are to be paid by the defendants. Costs to be
set off.

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