Ha v New South Wales

A slim majority of the Court (Brennan CJ, McHugh, Gummow and Kirby JJ) ruled in favour of the plaintiffs, adopting the broad view of an excise per Matthews v Chicory Marketing Board (Vic).^[2] They ruled an excise was a tax on sale, production and manufacture of goods prior to consumption, applying to goods whether produced locally or not. Excises could apply to any step in dealing with the goods. The Court viewed the scheme as purely about revenue raising without a discernible regulatory element, giving it the appearance of a tax. Under this broad view, the 'licence fee' imposed by the state government was in fact an excise, which Australian states are constitutionally barred from imposing.

The Court distinguished the decision from the earlier franchise fee cases (Dennis Hotels Pty Ltd v Victoria,^[3] and Dickenson's Arcade Pty Ltd v Tasmania ^[4]) because the period of backdating (two months instead of six) and the backdating mechanism were sufficiently different.

Ha also featured a strong dissent, with the minority of the Court (Dawson, Toohey and Gaudron JJ) adopting the traditional narrow view of an excise. They rejected the Parton v Milk Board (Vic) excise definition.^[5] The minority saw an excise as specifically a tax on the local manufacture or production of goods.

• Section 90 of the Constitution of Australia
• Australian constitutional law

• Winterton, G. et al. Australian federal constitutional law: commentary and materials, 1999. LBC Information Services, Sydney.