RAINSONG HOLDINGS PTY LIMITED v AUSTRALIAN CAPITAL TERRITORY & ANOR

Judges: Mason CJ
Brennan J
Deane J
Dawson J

Toohey J
Gaudron J
McHugh J

Court:
Full High Court

Judgment date: Judgment handed down 7 December 1993

Toohey and Gaudron JJ

Brennan J. referred for the consideration of the Full Court questions identical to those referred in Capital Duplicators Pty. Ltd. v. Australian Capital Territory (No 2) [11] 93 ATC 5053. , save that they concern the Business Franchise (``X'' Videos) Act 1990 (A.C.T.) (``the Act'') as amended by the Business Franchise (``X'' Videos) (Amendment) Act 1993 (A.C.T.). The proceedings were heard concurrently with Capital Duplicators (No 2) .

The effect of the amendments was to substitute an ``initial fee'' for the original ``advance fee'' and to require payment of that fee before the grant of a licence, rather than the previous requirement that an estimate be paid at the time of application and the advance fee be paid in full at the expiration of the licence period. Also, unlike the advance fee, the initial fee relates to the first two months of the licence. Section 19 calculates the initial fee as one which the Commissioner assesses as fair and reasonable; the advance fee was calculated as 40% of the value of relevant ``X'' videos traded in the licence period. Section 19(2) identifies the circumstances the Commissioner is required to consider in making an assessment of what is fair and reasonable. Those circumstances relate mainly to the value of stock in the first and second months of the licence and income likely to be received in those first two months. There is a new formula, in s. 20A, whereby the franchise fee for the second renewal of a licence is calculated.

There are other amendments which it is unnecessary to detail. Nothing in the 1993 amendments changes the character of the fees charged by the Act. They are taxes imposed for a licence to sell or hire particular commodities and they apply equally, whether the ``X'' videos are manufactured locally or whether they are imported. For the reasons we gave in Capital Duplicators Pty. Ltd. (No 2) , they are not duties of excise. Likewise, the amendments do not affect the character of the Act as not a law for the classification of materials for the purposes of censorship.

ATC 5091

We would answer the questions referred as follows:

Footnotes

[11] 93 ATC 5053.

 

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