To Neglect Legal Reasoning and Considered Dicta as Precedent is Wrong, Wrong, Wrong

In Vanderstock & Anor v State of Victoria [2023] HCA 30 (18 October 2023) Edelman J – in giving reasons in dissent as a member of the High Court finding that a statutory charge imposed by the State of Victoria was unenforceable under s 90 of the Commonwealth Constitution – wrote:

[650]  Precedent is comprised not merely of the results of decided cases. It includes the necessary reasoning that is sufficient for those results1421. And it includes seriously considered obiter dicta1422 . In that light, it is important to note the neglect of precedent that arises from treating an excise as including a tax whose effect is on the demand-side of a market for the sale of goods. As Gibbs J said in Dickenson’s Arcade1423 , since Parton “no member of [this] Court has dissented from, and almost every member who has had occasion to discuss the matter has expressly affirmed, the proposition that a tax imposed on consumption is not a duty of excise”.

[651]  The extension of the essential meaning of an excise to a tax that has a reasonably anticipated economic effect on the pattern of demand, as was sought by the plaintiffs and the Commonwealth, involves a neglect of precedent. It means: Dixon J was wrong1424; Dixon CJ was wrong1425; Kitto J was wrong1426; Taylor J was wrong1427; Menzies J was wrong1428; Windeyer J was wrong1429; Owen J was wrong1430; Barwick CJ was wrong1431; McTiernan J was wrong1432; Walsh J was wrong1433; Gibbs J was wrong1434; Stephen J was wrong1435; Mason J was wrong1436; Jacobs J was wrong1437; Gibbs CJ was wrong1438; Wilson J was wrong1439; Brennan J was wrong1440; Deane J was wrong1441; Dawson J was wrong1442; Mason CJ was wrong1443; and McHugh J was wrong1444. That list can, after today, also include Gordon J, Steward J, and me.

[652]  In short, amidst a sea of fluid principle with an expanding scope of application and techniques of application, until today a rock of constancy has been that a consumption tax is not a tax upon goods. As Gibbs J expressed the point1445:

It might be said that these expressions of opinion are not binding because it was not necessary to decide in any of these cases whether a tax imposed on consumption was an excise, but the very greatest weight should be given to the fact that on this issue unanimity has been reached after a fluctuation of judicial opinion.

1421  Vunilagi v R (2023) 97 ALJR 627 at 659–660 [155].

1422 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 150–151 [134].

1423 (1974) 130 CLR 177 at 221.

1424 Parton v Milk Board (Vict) (1949) 80 CLR 229 at 259–261.

1425 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 at 540–541; Bolton v Madsen (1963) 110 CLR 264 at 271, 273.

1426 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 at 559–560; Bolton v Madsen (1963) 110 CLR 264 at 271, 273; Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 at 373–375; Western Australia v Hamersley Iron Pty Ltd [No 1] (1969) 120 CLR 42 at 62; Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 at 22.

1427 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 at 573; Bolton v Madsen (1963) 110 CLR 264 at 271, 273; Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 at 376.

1428 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 at 588–590; Bolton v Madsen (1963) 110 CLR 264 at 271, 273; Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 at 377; Western Australia vHamersley Iron Pty Ltd [No 1] (1969) 120 CLR 42 at 64–65; Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 at 25; Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 209.

1429 Bolton v Madsen (1963) 110 CLR 264 at 271, 273; Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 at 379; Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 at 28.

1430 Bolton v Madsen (1963) 110 CLR 264 at 271, 273; Western Australia vHamersley Iron Pty Ltd [No 1] (1969) 120 CLR 42 at 71.

1431 Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 at 364, 368; Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 at 12–13; Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 185–187, 193–194.

1432 Western Australia vHamersley Iron Pty Ltd [No 1](1969) 120 CLR 42 at 56–57; Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 at 17. But compare Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 196, 204.

1433 Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 at 35–36.

1434 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 218–222; Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59 at 63–65.

1435 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 229–231; Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59 at 69–70.

1436 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 239; Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 at 628, 632.

1437 H C Sleigh Ltd v South Australia (1977) 136 CLR 475 at 520–521; Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59 at 80.

1438 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 at 615, 619–621; Gosford Meats Pty Ltd v New South Wales (1985) 155 CLR 368 at 377–378.

1439 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 at 644, 649–650; Gosford Meats Pty Ltd v New South Wales (1985) 155 CLR 368 at 400, 404.

1440 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 at 655, 657–658; Philip Morris Ltd v Cmr of Business Franchises (Vict) (1989) 167 CLR 399 at 444–445; Mutual Pools & Staff Pty Ltd v Federal Cmr of Taxation (1992) 173 CLR 450 at 453.

1441 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 at 665–666; Philip Morris Ltd v Cmr of Business Franchises (Vict) (1989) 167 CLR 399 at 429–431, 435–436.

1442 Gosford Meats Pty Ltd v New South Wales (1985) 155 CLR 368 at 412, 414.

1443 Philip Morris Ltd v Cmr of Business Franchises (Vict) (1989) 167 CLR 399 at 429–431, 435–436; Mutual Pools & Staff Pty Ltd v Federal Cmr of Taxation (1992) 173 CLR 450 at 453.

1444 Philip Morris Ltd v Cmr of Business Franchises (Vict) (1989) 167 CLR 399 at 488–492; Mutual Pools & Staff Pty Ltd v Federal Cmr of Taxation (1992) 173 CLR 450 at 453.

1445 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 221.