Section 99 of the Constitution of Australia

Jurisprudence

The section was first tested in 1906 in The Colonial Sugar Refining Company Limited v Irving, where the Commonwealth had introduced an exemption in its excise duty legislation for goods on which customs or excise duty had been paid under State legislation before the imposition of Commonwealth duties. At the Judicial Committee of the Privy Council, Lord Davey, ruling that the exemption was constitutional, stated that "The rule laid down ... 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." This principle has not been in doubt in subsequent jurisprudence.

The High Court of Australia first considered the provision in R v Barger, which held the Excise Tariff 1906 invalid on several grounds. The aspect which offended s. 99 concerned an exemption relating to goods manufactured by any person in any part of the Commonwealth under certain conditions relating to the remuneration of labour, which could vary according to local circumstances, agreements and judicial opinion. In invalidating this provision, Griffith CJ, Barton and O'Connor JJ said:

In his dissent in Barger, Isaacs J disputed the inclusion of "different localities within the Commonwealth," and subsequent judgments of the High Court and the Privy Council split on this point. In Elliott v Commonwealth, Evatt J, in his dissenting judgment, rejecting Isaacs, stated:

Evatt J's summary was endorsed by the High Court in 2004 in Permanent Trustee Australia Ltd v Commissioner of State Revenue, which is the foundation of current jurisprudence concerning the provision. Its rationale was further summarized in 2013 where, in Fortescue Metals Group Limited v The Commonwealth, the Court declared that its objectives were similar to that with respect to the taxation power: