328:
506:
differently from the man or similar property in another locality". The second proposition was more controversial, in which Isaacs J sought to distinguish parts of a State from parts of the
Commonwealth, holding that section 51(i), when read in conjunction with section 99, did not require taxation to be uniform throughout the Commonwealth, instead "that the treatment that is forbidden, discrimination or preference, is in relation to the localities considered as parts of States, and not as mere Australian localities, or parts of the Commonwealth considered as a single country". This followed the line of reasoning apparent from his earlier statements in Parliament when introducing the
31:
549:
course of argument, Griffith CJ stated "The express power given to the
Commonwealth Parliament to deal with foreign and inter-state trade and commerce implies a prohibition against interfering with interstate trade and commerce, and that must be remembered in dealing with the other powers given." The majority described the applicable rule in this case as "different, but ... founded upon the same principles", concluding that the power of taxation could not be exercised so as to operate as a direct interference in the internal affairs of the States.
440:
regulate the wages of employees in manufacturing, and could enforce that with a penalty for non-compliance. A State could not impose an excise as this power was exclusive to the
Commonwealth. It followed in their Honour's judgement that such a penalty, even if calculated by reference to the quantity of articles manufactured, was not an excise, where the purpose was "not to raise money for the purposes of government, but to regulate the conditions of labour". The
595:
that the law was not one with respect to taxation. The taxation power is a non-purposive power, hence any law that could be encapsulated under the subject matter of taxation would be valid under section 52(ii). The dissent also brought up the notion of dual-characterisation β that a law could be characterised several different ways. As long as at least one of the characterisations is pursuant to a head of power, the law would be constitutionally valid.
422:. The Court was divided 3:2 and the division in the Court can be seen as a continuation of the debate in the constitutional conventions about the nature of the federal system and the legislative powers of the new Commonwealth. While the doctrine of reserved powers permeated the decision of the majority, Grifith CJ, Barton & O'Connor JJ, it is not clear that the decision rested solely on that doctrine.
475:
the States were different, which is quite another thing" This decision was affirmed on appeal by the Privy
Council. which held that "The rule laid down by the Act is a general one, applicable to all the States alike, and the fact that it operates unequally in the several States arises not from anything done by the Parliament, but from the inequality of the duties imposed by the States themselves".
510:, that States Wages Boards and Arbitration Courts could not be recognised as setting 'fair & reasonable' wages without discriminating between the States because they depended on State lines which must be forgotten for the purpose of taxation. The Commonwealth could recognise different rates in different parts of Australia, but not as different State rates. This distinction was one that
527:
which exempted certain manufacturers from paying the excise was of no effect. The suggestion that the exemption would be of no effect was dealt with in short form by the majority, holding that "The proviso in the Act in question cannot, of course, be regarded as 'of no effect,' for to do so would be 'to make a new law, not to enforce an old one'."
1365:
234:, later recalled that Isaacs "had a remarkably keen brain but it was apt to be sometimes too subtle for my liking. When we were drafting a bill whose constitutionality was not beyond doubt, his devices to conceal any possible want of power were sometimes so ingenious as to raise, rather than evade, suspicion".
444:
was held to be in substance a regulation of the manufacture". The decision in this respect has been criticised as a collapse into formalism, holding that 'motive' and 'consequences' were irrelevant while the 'purpose apparent on its face' was relevant. Further a particular tax may have more than one
352:
where agricultural machinery was built. In 1907 McKay applied to the
Commonwealth Court of Conciliation and Arbitration for a declaration that the wages at his factory were "fair and reasonable". McKay admitted that he was in a position to pay whatever the court found to be fair and reasonable wages.
594:
The beginnings of the overturning of the doctrine were already evident in the dissenting decision of Isaacs and
Higgins, who held that neither the purpose nor the effects of the Act were a valid objection for the exercise of the taxation power. Simply because the law had another purpose did not mean
572:
Higgins J similarly rejected the reserved powers doctrine stating "To say that the
Federal Parliament cannot make a law because legislation on the subject belongs to the States is rather to invert the true position. The Commonwealth has certain powers, and as to those powers it is supreme; the State
469:
Section 51(ii) of the
Constitution provides that in making laws with respect to taxation, the Commonwealth cannot "discriminate between States of parts of States". This was the first occasion this issue had been considered by the High Court, although Griffith CJ had previously handed down a decision
534:
was in substance a tax, neither Isaacs J nor
Higgins J needed to deal with the effect of dealing with any other matter. Higgins J put it succinctly that "this Act deals only with the imposition of taxation; it taxes, and it defines the persons to be exempted from the tax. This is all it does. There
474:
that an excise which exempted goods on which customs or excise duties had been paid under state legislation did not discriminate between the states, holding that "f the imposition of these duties leads to an inequality, it is not a defect in the
Federal law; it arises from the fact that the laws of
439:
1906 was invalid because it was not in substance a tax, but rather an impermissible attempt to regulate the conditions of manufacture, and that went beyond extent of the taxation power. Their Honours approached the substance of the Act by considering the position of the States, which could directly
316:
are, on an application made for the purpose to the President of the Commonwealth Court of Conciliation and Arbitration, declared to be fair and reasonable by him or by a Judge of the Supreme Court of a State or any person or persons who compose a State Industrial Authority to whom he may refer the
240:
was a member of the Protectionist Party, but was in broad agreement with the Labour Party social reforms. When the Labour Party sought to amend the Conciliation and Arbitration Bill to cover State railway employees, Higgins was one of the radicals who supported the amendments and helped bring down
460:
Higgins J also rejected the substance argument, holding that as the Act imposed a tax on the production or manufacture of commodities, it was an excise tax, which the Federal Parliament could impose and the State Parliaments could not. The claim the real substance of the act was the regulation of
526:
Section 55 of the constitution provides that "laws imposing duties of excise shall deal with duties of excise only" and that "any provision therein dealing with any other matter shall be of no effect." Thus if taken literally the effect of s 55 would be that the excise was valid, but the proviso
376:
1906 was invalid. That objection was referred to the Full Court of the High Court for hearing. The argument for Barger and McKay was that although the Act on its face purports to be an exercise of the taxation power, the real substance and effect of the Act was with respect to the conditions and
548:
The conclusion of the majority was reached in the shadow of the reserved powers doctrine, in which the grants of power to the Commonwealth in the Constitution should be read in a restrictive way so as to preserve areas that had been intentionally left as the responsibility of the States. In the
505:
There are two propositions within the judgment of Isaacs J. The first, later to assume orthodoxy, was that "Discrimination between localities in the widest sense means that, because one man or his property is in one locality, then, regardless of any other circumstance, he or it is to be treated
492:
required the Court to have regard to local circumstances, it followed that the wages payable under an award "might vary according to the area within which the manufacture was carried on." and that this was an invalid attempt to authorise discrimination between States and parts of States. In the
256:. In October 1906 Isaacs and Higgins were each appointed to the High Court, setting up a clash between the three inaugural 'federalist' judges, Griffith CJ, Barton & O'Connor JJ, and the two 'nationalist' judges, Isaacs & Higgins JJ. All five judges had been leading participants in the
487:
was not a law with respect to taxation. Thus the question of whether it discriminated between States could only arise on the hypothesis that the primary finding was wrong and the law was "with respect to taxation". Their Honours held that "The words 'States or parts of States' must be read as
561:. It is an inherent consequence of the division of powers between governmental authorities that neither authority is to hamper or impede the other in the exercise of their respective powers, but that doctrine has no relation to the extent of the powers themselves; it assumes the delimitation
497:"if the Excise duty had been made to vary in inverse proportion to the Customs duties in the several States so as to make the actual incidence of the burden practically equal, that would have been a violation of the rule of uniformity".
357:
per day and published a schedule of fair and reasonable wages called "The Excise Tariff Standard for Time-work". Higgins J declared that the wages paid by McKay were not fair and reasonable in so far as they fell below that standard.
517:
Higgins J reasoned along similar lines to Isaacs J and observed that it would not be discrimination between States or parts of States if a graduated income tax were introduced when incomes were higher in one State than in another.
371:
1906. Both McKay and another manufacturer of agricultural machinery in Melbourne, William Barger, were prosecuted by the Commonwealth for failing to pay the excise. The defences of Barger and McKay included an objection that the
366:
Despite the declaration in the Harvester case, McKay did not increase the wages paid to his employees to the minimum that Higgins J had declared to be fair and reasonable, nor did he pay the excise specified in the
1199:
Commonwealth of Australia Constitution: "The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part
1433:
583:
557:
Isaacs J strongly opposed the reserved powers doctrine, holding "There can be no derogations from the grant expressly made, except those which are expressly stated or which of necessity
1515:
591:. The doctrine had been established and affirmed in earlier cases by the original High Court Bench (Griffith CJ, Barton and O'Connor JJ) who were the majority in this decision.
353:
Higgins J heard the application and submissions were made by unions and other large manufacturers. Higgins J determined that the minimum wage for unskilled workers should be
327:
300:
261:
457:
was clearly a tax on the specified machinery, that the proviso did not remove that characterisation and the reason of the legislature was irrelevant to validity.
280:
1906, Both Isaacs and Higgins spoke in support of the bills that imposed custom and excise duties that were payable on certain agricultural machinery, including
604:
292:
Provided that this Act shall not apply to goods manufactured by any person in any part of the Commonwealth under conditions as to remuneration of labour whichβ
177:
386:
418:
The Court had to consider whether the Commonwealth had power to indirectly regulate the working conditions of workers under section 51(ii) of the
461:
wages referred to either the motives or the legislators or to the consequences of the legislation, neither of which were matters for the Court.
1510:
1495:
1233:
923:
860:
787:
724:
257:
1520:
774:
711:
535:
is no "provision therein dealing with any other matter." There is no obligation laid on anyone to do anything except to pay the tax."
1025:
844:
188:
was imposed on manufacturers, with an exemption being available for those who paid "fair and reasonable" wages to their employees.
201:
121:
1500:
288:
1906 contained a proviso that the excise would not be payable if the manufacturer paid "fair and reasonable" wages as follows:
1229:
779:
716:
683:
227:
381:
1906 was invalid. The Commonwealth argued that the Act was an exercise of the taxation power and there could be no issue of
609:
354:
212:, on the understanding that the Protectionists would implement a number of social reforms desired by Labor. In 1906 the
471:
30:
260:
and all are properly seen as among the framers of the Constitution. In 1907 O'Connor J resigned as President of the
220:'New Protection' provided tariff protection to employers in exchange for 'fair and reasonable' wages for employees.
1366:
Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association
113:
1505:
419:
377:
remuneration of labour. The State of Victoria obtained leave to intervene in both cases and similarly argued the
1263:
1129:
869:
830:
588:
382:
349:
241:
Deakin's government. When Labour formed a minority government in 1904, Higgins became Attorney-General in the
488:
synonymous with 'parts of the Commonwealth' or 'different localities within the Commonwealth.'" Because the
197:
181:
173:
41:
1015:
573:
has the rest. We must find what the Commonwealth powers are before we can say what the State powers are".
281:
249:
213:
209:
1088:
1196:
995:
980:
657:
1343:
966:
95:
1321:
205:
672:
706:
1021:
840:
801:
793:
783:
738:
730:
720:
679:
345:
935:. Commonwealth of Australia: House of Representatives. 21 September 1906. pp. 5138β5150.
769:
1475:
332:
1459:
1438:
1371:
1348:
1259:
1125:
865:
632:
71:
1326:
1160:
453:
Isaacs J rejected the substance argument, holding that in the absence of the proviso, the
242:
110:
52:
The King and the Minister of State for the Commonwealth Administering the Customs v Barger
1442:
1420:
1405:
1390:
1375:
1352:
1308:
1293:
1278:
1212:
1144:
1106:
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1043:
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75:
1330:
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340:
90:
1489:
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904:
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are declared by resolution of both Houses of Parliament to be fair and reasonable; or
237:
231:
217:
129:
117:
565:. It is contrary to reason to shorten the expressly granted powers by the undefined
1225:
1178:
1011:
702:
253:
223:
125:
566:
834:
562:
230:
in Deakin's government. The secretary of the Attorney-General's Department, Sir
155:(2) even if it was a tax, the Act dealt with matters other than taxation; &
1434:
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case)
558:
511:
797:
734:
514:
described in 1958 as something he had the "greatest difficulty in grasping".
805:
742:
309:
are in accordance with the terms of an industrial agreement filed under the
184:
to indirectly regulate the working conditions of workers. In this case, an
331:
Sunshine Harvester on display at the Campaspe Run Rural Discovery Centre,
132:
1241:
931:
272:
The Commonwealth government introduced two bill that would become the
829:
John M Williams (2015). "Ch 5 The Griffith Court". In Dixon, R &
185:
1245:. Commonwealth of Australia: House of Representatives. p. 5142.
326:
157:(3) it interfered with matters reserved exclusively to the States.
245:, because Labour had no suitably qualified lawyer in Parliament.
1177:
Rose, D (1977). "Discrimination, Uniformity and Preference". In
1147:
at p. 70-1 & 78β80 per Grifith CJ, Barton & O'Connor JJ.
1480:
Australian federal constitutional law: commentary and materials
54:
The Commonwealth and A. W. Smart, Collector of Customs v McKay
409:
interfered with matters reserved exclusively to the States.
248:
Both Isaacs and Higgins had previously been members of the
836:
The High Court, the Constitution and Australian Politics
678:(2nd ed.). Harcourt Brace Jovanovich. p. 188.
216:
was in power, with support from Labour. Prime Minister
824:
822:
1046:
at p. 74-76 per Grifith CJ, Barton & O'Connor JJ.
299:
are in accordance with an industrial award under the
1103:
Colonial Sugar Refining Co Ltd v Irving (Queensland)
208:
formed the first government with the support of the
138:
106:
101:
86:
81:
67:
59:
47:
37:
23:
1296:at p. 77 per Grifith CJ, Barton & O'Connor JJ.
671:
392:The issues before the High Court were whether the
348:, one of Australia's largest employers, owned the
311:Commonwealth Conciliation and Arbitration Act 1904
262:Commonwealth Court of Conciliation and Arbitration
252:and in 1896 supported the trial introduction of a
1157:Cameron v Deputy Federal Commissioner of Taxation
674:Australia: A Concise Political and Social History
483:The primary finding of the majority was that the
653:
651:
649:
647:
645:
495:Colonial Sugar Refining Company Limited v Irving
403:discriminated between States or parts of States;
976:
974:
200:saw a series of minority governments until the
953:. Commonwealth of Australia. 15 December 1904.
1516:Taxation in the Australian Constitution cases
1234:"Excise Tariff (Agricultural Machinery) Bill"
1122:Fortescue Metals Group Limited v Commonwealth
949:Commonwealth Conciliation and Arbitration Act
924:"Excise Tariff (Agricultural Machinery) Bill"
911:. Commonwealth of Australia. 12 October 1906.
889:. Commonwealth of Australia. 12 October 1906.
763:
761:
759:
605:Constitutional basis of taxation in Australia
302:Commonwealth Conciliation and Arbitration Act
8:
1117:
1115:
1098:
1096:
899:
897:
697:
695:
406:dealt with a matter other than taxation; and
1183:Commentaries on the Australian Constitution
991:
989:
1456:Fairfax v Federal Commissioner of Taxation
715:. Canberra: National Centre of Biography,
29:
20:
1482:, 1999. LBC Information Services, Sydney.
861:NSW v Commonwealth (the WorkChoices case)
522:Dealing with a matter other than taxation
493:converse situation to that considered in
1006:
1004:
530:Consistent with their opinions that the
268:Customs and Excise payable on Harvesters
16:Judgement of the High Court of Australia
1086:Colonial Sugar Refining Co Ltd v Irving
998:Commonwealth of Australia Constitution.
983:Commonwealth of Australia Constitution.
660:Commonwealth of Australia Constitution.
621:
160:per Griffith CJ, Barton and O'Connor JJ
707:"Isaacs, Sir Isaac Alfred (1855β1948)"
176:case where the majority held that the
7:
964:Ex Parte H.V. McKay (Harvester case)
770:"Higgins, Henry Bournes (1851β1929)"
92:Ex Parte H.V. McKay (Harvester case)
1017:The High Court and the Constitution
426:Was the Act in substance an excise?
389:was exclusive to the Commonwealth.
775:Australian Dictionary of Biography
712:Australian Dictionary of Biography
544:Grifith CJ, Barton and O'Connor JJ
479:Grifith CJ, Barton and O'Connor JJ
431:Grifith CJ, Barton and O'Connor JJ
153:(1) it was not in substance a tax;
14:
581:The decision was made before the
465:Discrimination between the states
1443:(1920) 28 CLR 129
1256:Commissioner of Taxation v Clyne
1020:. Federation Press. p. 41.
490:Conciliation and Arbitration Act
1376:(1906) 1 CLR 488
1353:(1904) 1 CLR 497
1242:Parliamentary Debates (Hansard)
1165:(1923) 32 CLR 68
932:Parliamentary Debates (Hansard)
400:was in substance an excise tax;
264:and was replaced by Higgins J.
1421:(1908) 6 CLR 41
1406:(1908) 6 CLR 41
1391:(1908) 6 CLR 41
1331:(1904) 1 CLR 91
1309:(1908) 6 CLR 41
1294:(1908) 6 CLR 41
1279:(1908) 6 CLR 41
1213:(1908) 6 CLR 41
1145:(1908) 6 CLR 41
1074:(1908) 6 CLR 41
1059:(1908) 6 CLR 41
1044:(1908) 6 CLR 41
839:. Cambridge University Press.
780:Australian National University
717:Australian National University
637:(1908) 6 CLR 41
589:reserved State powers doctrine
76:(1908) 6 CLR 41
1:
1511:Australian constitutional law
1496:High Court of Australia cases
610:Australian constitutional law
435:Their Honours held that the
472:Chief Justice of Queensland
196:The first decade after the
1537:
1521:Australian labour case law
1089:[1903] St R Qd 261
338:
258:Constitutional Conventions
1215:at p. 106-7 per Isaacs J.
543:
478:
180:could not be used by the
143:
28:
1423:at p. 113 per Higgins J.
1393:at p. 54 per Grifith CJ.
1311:at p. 134 per Higgins J.
1281:at p. 133 per Higgins J.
1076:at p. 117 per Higgins J.
350:Sunshine Harvester Works
214:second Deakin government
1368:(Railway servants case)
1132:548 at - per French CJ.
587:in 1920 swept away the
430:
420:Australian Constitution
198:Federation of Australia
174:High Court of Australia
42:High Court of Australia
1501:1908 in Australian law
1439:[1920] HCA 54
1408:at p. 84 per Isaacs J.
1372:[1906] HCA 94
1349:[1904] HCA 21
1260:[1958] HCA 10
1126:[2013] HCA 34
1107:[1906] UKPC 20
1061:at p. 98 per Isaacs J.
866:[2006] HCA 52
768:Rickard, John (1983).
633:[1908] HCA 43
336:
335:, Victoria, Australia.
320:
294:
250:Parliament of Victoria
72:[1908] HCA 43
1460:[1965] HCA 64
1327:[1904] HCA 1
1232:(21 September 1906).
1161:[1923] HCA 4
553:Isaacs and Higgins JJ
501:Isaacs and Higgins JJ
449:Isaacs and Higgins JJ
330:
290:
182:Australian Parliament
1344:Peterswald v Bartley
670:Clarke, F G (1992).
151:1906 was invalid as:
1462:, (1965) 114 CLR 1.
282:stripper harvesters
206:Protectionist Party
885:Customs Tariff Act
337:
323:The Harvester case
274:Customs Tariff Act
907:Excise Tariff Act
789:978-0-522-84459-7
726:978-0-522-84459-7
508:Excise Tariff Act
485:Excise Tariff Act
455:Excise Tariff Act
442:Excise Tariff Act
437:Excise Tariff Act
346:Hugh Victor McKay
286:Excise Tariff Act
278:Excise Tariff Act
165:
164:
161:
149:Excise Tariff Act
1528:
1506:1908 in case law
1463:
1452:
1446:
1430:
1424:
1415:
1409:
1400:
1394:
1385:
1379:
1362:
1356:
1340:
1334:
1322:D'Emden v Pedder
1318:
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1230:Attorney-General
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362:The prosecutions
228:Attorney-General
159:
102:Court membership
33:
21:
1536:
1535:
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1472:
1470:Further reading
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987:
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627:
623:
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601:
579:
555:
546:
541:
539:Reserved Powers
524:
503:
481:
467:
451:
433:
428:
416:
383:reserved powers
364:
343:
325:
270:
243:Labour ministry
194:
158:
156:
154:
152:
53:
17:
12:
11:
5:
1534:
1532:
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1447:
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1410:
1395:
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1357:
1335:
1313:
1298:
1283:
1268:
1266:246 at p. 266.
1248:
1217:
1202:
1189:
1185:. p. 194.
1169:
1149:
1134:
1111:
1092:
1078:
1063:
1048:
1033:
1026:
1000:
985:
970:
967:(1907) 2 CAR 1
956:
938:
915:
893:
874:
852:
845:
818:
788:
755:
725:
691:
684:
662:
658:section 51(ii)
641:
620:
619:
617:
614:
613:
612:
607:
600:
597:
584:Engineers case
578:
575:
554:
551:
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542:
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523:
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363:
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341:Harvester case
339:Main article:
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321:
319:
318:
314:
307:
297:
276:1906, and the
269:
266:
193:
190:
178:taxation power
163:
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141:
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136:
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108:
107:Judges sitting
104:
103:
99:
98:
96:(1907) 2 CAR 1
88:
87:Related action
84:
83:
79:
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69:
65:
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61:
57:
56:
49:
48:Full case name
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387:excise power
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254:minimum wage
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224:Isaac Isaacs
222:
210:Labour Party
195:
168:
167:
166:
148:
144:
91:
82:Case history
63:26 June 1908
51:
18:
831:Williams, G
445:objective.
355:7 shillings
1490:Categories
1418:R v Barger
1403:R v Barger
1388:R v Barger
1306:R v Barger
1291:R v Barger
1276:R v Barger
1210:R v Barger
1197:Section 99
1142:R v Barger
1109:, AC 360.
1071:R v Barger
1056:R v Barger
1041:R v Barger
996:section 55
981:section 90
811:22 October
748:22 October
685:0729513092
629:R v Barger
616:References
532:Excise Act
394:Excise Act
379:Excise Act
374:Excise Act
369:Excise Act
192:Background
172:is a 1908
169:R v Barger
24:R v Barger
1454:See also
1226:Mr Isaacs
1200:thereof."
798:1833-7538
735:1833-7538
68:Citations
1179:Zines, L
1014:(1981).
1012:Zines, L
833:(eds.).
806:70677943
743:70677943
705:(1983).
599:See also
577:Analysis
567:residuum
512:Dixon CJ
414:Decision
226:was the
218:Deakin's
122:O'Connor
111:Griffith
1478:et al.
1228:,
1181:(ed.).
872:1 at -.
563:aliunde
470:whilst
385:as the
317:matter.
130:Higgins
60:Decided
1167:at 72.
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559:inhere
333:Elmore
284:. The
204:. The
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126:Isaacs
118:Barton
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38:Court
1022:ISBN
841:ISBN
813:2016
802:OCLC
794:ISSN
784:ISBN
750:2016
739:OCLC
731:ISSN
721:ISBN
680:ISBN
313:; or
306:; or
304:1904
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