When tolls are legitimately charged, they are traditionally seen as user-pays fees intended to recover the cost of building and maintaining infrastructure. This is a form of cost recovery, not strictly a "tax" in the conventional sense, though it functions similarly. Although the States have some power to levy fees to pay for public services and infrastructure. Section 90 of the Constitution limits States from imposing duties of excise (a type of tax) on goods or commerce that power belongs exclusively to the Commonwealth. Section 92 guarantees free trade and movement, which tolls arguably restrict if they become a permanent economic barrier.
Federation in 1901 did not create an explicit, written “right to freedom of movement” in the style of a bill of rights. However, it established a unified legal and political framework particularly through Section 92 of the Constitution that the High Court has interpreted to imply a constitutional guarantee of freedom of interstate movement (as part of “intercourse among the States”).
This freedom is generally protected, but it is not absolute. In rare circumstances, such as during a pandemic, reasonable and proportionate restrictions may be upheld provided they serve a legitimate, non-protectionist purpose, such as public health.
There is no clear constitutional power that allows private, especially foreign-owned, companies to charge tolls purely for profit on public roads in Australia. The original purpose of tolls was to recover the cost of building and maintaining infrastructure not to generate ongoing profit. While governments can fund roads through user charges, once tolling becomes a tool for private profit rather than public service, it risks straying beyond the intended scope of constitutional powers. The Constitution gives the Commonwealth and States power over trade, commerce, and roads, but it does not explicitly authorise the outsourcing of essential public infrastructure to private entities for commercial exploitation.
Not even under State constitutions, is there express or inherent power for this that clearly allows private or foreign owned companies to charge tolls purely for profit on public roads. State governments may authorise toll roads, but the power to do so is meant to serve a public purpose usually to recover the cost of construction, maintenance, or operation of the road. Turning tolls into a permanent profit making scheme for private companies, especially foreign-owned ones, raises legal and constitutional concerns, including Accountability and Sovereign control of public infrastructure.
In Vanderstock v Victoria, the High Court ruled that a State-imposed charge on electric vehicle use (the ZLEV road-user charge) was an excise, and therefore unconstitutional under section 90 of the Australian Constitution. Section 90 gives the Commonwealth exclusive power to impose duties of excise, meaning the States cannot impose taxes on goods including charges imposed for their use or consumption. The Court took a broad view of what counts as an excise, holding that it can include charges on the use of goods, not just their sale or production. This decision widened the scope of what is considered an excise beyond traditional manufacturing taxes. A charge imposed by a State on the use of a good (like a car on a public road) may now be unconstitutional if it’s effectively a tax, even if it's not called one.
So if a toll is charged by a private company under State legislation, and the toll: Applies to the use of vehicles (goods), and is not directly tied to the cost of providing infrastructure, and, Generates ongoing profit, especially for foreign-owned entities, then that toll could be constitutionally invalid under the logic of Vanderstock, because it may function as an excise duty, which States are not permitted to impose.
In Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263
In this case, Latham CJ gave a widely accepted definition of a tax:
“A tax is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered.”
One needs to ask the question is a toll charged by a public authority for a public purpose and not a payment for services rendered? Essentially a charge imposed by a State on the use of a good (like a car on a public road) may now be unconstitutional if it’s effectively a tax, even if it's not called one.
Below is a draft letter to send to your representitives raising the above concerns, get behind this and soon we could see this unconstitutional charge removed giving relief to all Australians.
Victoria
To:
The Hon. xxxxxxx xxxxxxxx
Minister for Infrastructure / Member for xxxxxxxxxxx
Parliament of the State of xxxxxxxxxxx
[Address]
Reclaiming the Constitutional and Public Principle of Absolutely Free Movement on Australian Roads
Dear xxxxxx xxxxxxxxxx,
I am writing to express my deep concern regarding the continued tolling of Australian roads particularly those that were built or co-funded using public money and the constitutional and public policy implications this practice raises. Historically, tolls were imposed to recover the cost of building essential public infrastructure, such as the Sydney Harbour and West Gate Bridges. These tolls were removed once construction debts were repaid. This approach reflected the public interest and aligned with the intent of the framers of the Constitution that travel and commerce within our federated nation should be “absolutely free,” as enshrined in Section 92 of the Commonwealth Constitution, which states:
“Trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.”
However, the current model whereby roads originally funded with taxpayer money have been handed over to private and, in some cases, foreign-owned corporations under long-term tolling contracts is a serious deviation from that principle. For instance, Transurban collected over $3.2 billion in toll revenue during the 2023–24 financial year. These revenues are not merely paying off infrastructure; they are enriching shareholders and, in many cases, leaving Australians with no real alternative routes.
Despite this, I am more than willing to pay future tolls, on the following strict conditions:
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The toll is used solely to repay the cost of building and maintaining the road, as the framers of the Constitution intended.
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The toll is not for the profit of any private or foreign corporation.
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All toll revenue forms part of the State’s Consolidated Revenue, as a legal required under Section 89 of the Constitution Act 1975 (Vic), which states:
“All taxes imposts rates and duties and all territorial casual and other revenues of the Crown in right of the State of Victoria (including royalties) which the Parliament has power to appropriate shall form one Consolidated Revenue to be appropriated for the public service of Victoria…”
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That satisfactory and lawful response is provided in relation to the following key legal and constitutional matters:
With respect to Legal and Constitutional Concerns Regarding Toll Revenues Used for Private or Foreign Profit: While tolls have traditionally been justified as user-pays mechanisms to recover the cost of building and maintaining public roads, serious constitutional and legal concerns arise when tolls are imposed indefinitely and used to generate profit for private particularly foreign-owned corporations.
Under the Commonwealth of Australia Constitution, the following key provisions are relevant:
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 90
Exclusive power over customs, excise, and bounties.
This provision prohibits States from imposing duties of excise, which are broadly interpreted to include any tax on goods or services prior to consumption, including charges on the use of infrastructure related to commercial activity.
In Vanderstock v Victoria (2023), the High Court ruled that a state-imposed electric vehicle levy was an unconstitutional excise, reinforcing the principle that States may not impose such charges outside Commonwealth authority. By extension, it is arguable that tolls functioning as revenue-raising measures, especially when paid into private profit streams, may also constitute an invalid excise.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 92
Trade within the Commonwealth to be free.
“Trade, commerce, and intercourse among the States… shall be absolutely free.”
Toll roads, especially when no viable free alternative exists, create economic and physical barriers to movement. When these barriers are imposed perpetually, and not for infrastructure cost recovery, they arguably breach the constitutional guarantee of absolutely free intercourse among the States, particularly if they apply to essential routes of trade or migration.
A clear Violation of Public Revenue Principles: According to Section 89 of the Constitution Act 1975 (Vic), all revenue raised by the State must form part of the Consolidated Revenue, and be appropriated for the public service unless it is specifically provided for.
“All taxes imposts rates and duties… shall form one Consolidated Revenue to be appropriated for the public service of Victoria…”
Toll revenue that is directed to private or foreign-owned corporations instead of the State's Consolidated Revenueviolates this principle. Such arrangements bypass parliamentary accountability and the public interest, creating a two-tiered system where movement is monetised for profit rather than governed as a public service.
In light of the above, I respectfully request that your office:
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Review the legality and fairness of long-term tolling arrangements in light of Sections 90 and 92 of the Constitution.
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Ensure that all toll revenue is publicly accounted for and forms part of the State's Consolidated Revenue, in accordance with Section 89 of the Constitution Act 1975 (Vic).
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Propose legislative and constitutional reform, where necessary, to restore the principle that movement on publicly funded infrastructure should be absolutely free.
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Consider initiating or supporting a broader constitutional inquiry into the modern meaning of “absolutely free” movement, particularly as it relates to public-private partnerships and the monopolisation of essential roadways.
This is more than a legal issue it goes to the heart of our shared national identity. Roads are not a luxury service; they are a fundamental element of public infrastructure. If everyday Australians cannot move freely without paying for the privilege, we have strayed far from the original vision of a fair and united federation.
Thank you for your time and consideration. I look forward to your response.
Yours sincerely,
PLEASE NOTE:
The consolidated fund argument does not apply in NSW or Queensland.
_______________________
Source:supplied
