In 2023, the High Court in Vanderstock v Victoria changed how certain government charges are understood. The case looked at a per-kilometre charge on electric vehicles. It sounded like a simple fee. The Court said it could be something else.
The Key Principles of section 90 - Vanderstock
1. Substance over labels
A State cannot avoid section 90 just by calling a charge a “fee”, “levy”, “road user charge”, “toll”, or something else. The question is simpler than that:
what is the charge really doing? If it operates like a tax on the use of goods, the Court can treat it as a tax, no matter what label the government or operator gives it.
2. Excise is broader than the old view
Section 90 gives the Commonwealth exclusive power over duties of excise. For a long time, people argued about whether excise only applied to taxes on the production, manufacture, or sale of goods. Vanderstock made clear that the idea is broader than that. A State charge can still be an excise even if it is imposed later, after the goods have already been bought. That matters. Because a car is a good. A truck is a good. A vehicle being used on a road is still a good being used in commerce, work, travel, freight, and daily life.
3. Use of goods can matter
In Vanderstock, the charge was imposed on the use of electric vehicles on public roads. The High Court held that a State charge on the use of goods can fall within section 90. That is the possible link to tolls. A toll is not just an abstract road payment. In practical terms, it is a charge imposed when a person uses a vehicle on a particular road. So the question becomes: is this really just a fee for using infrastructure, or is it, in substance, a tax on the use of vehicles? That is the legal pressure point.
4. Practical effect is decisive
The Court looks at practical reality. Not the sales pitch. Not the spin. Not the neat wording in the legislation. If the charge works like a tax, burdens people like a tax, is enforced like a tax, and raises revenue like a tax, then the law may treat it as a tax. That is why toll roads deserve serious scrutiny. People are not just paying for a service in some clean, voluntary sense. Many drivers have little practical choice. Workers, tradies, couriers, parents, freight operators, and commuters often have to use these roads because the road network has been built around them. So the real question is not: “Is it called a toll?” The real question is: “What does it do in practice?”
5. States cannot avoid the Constitution by clever design
If a charge is, in substance, an excise, a State cannot impose it. It does not matter if the structure is complicated. It does not matter if a private operator collects it. It does not matter if the State says it is part of a concession arrangement. The Constitution looks past the machinery. If the State creates, authorises, protects, or enforces a charge that operates as an excise, then section 90 may be engaged.
The simple link to toll roads
Vanderstock gives ordinary Australians a serious question to ask: If Victoria could not impose a road user charge on electric vehicles because it was, in substance, an excise, why should State-backed toll regimes escape scrutiny when they charge people for using vehicles on essential roads? That does not mean every toll is automatically unconstitutional. But it does mean the issue is no longer fringe. The High Court has already said that charges on the use of vehicles can fall within section 90. Now the question is whether modern toll roads have crossed the line from fair infrastructure funding into unconstitutional State-based taxation.
“For nothing is hidden that will not be disclosed…” - Luke 8:17