For faster navigation, this Iframe is preloading the Wikiwand page for Castlemaine Tooheys Ltd v South Australia.

Castlemaine Tooheys Ltd v South Australia

This article includes a list of general references, but it lacks sufficient corresponding inline citations. Please help to improve this article by introducing more precise citations. (February 2018) (Learn how and when to remove this message)
Castlemaine Tooheys Ltd v South Australia
CourtHigh Court of Australia
Decided7 February 1990
Citation(s)[1990] HCA 1, (1990) 169 CLR 436
Court membership
Judge(s) sittingMason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
Case opinions
(7:0) If a law is protectionist in nature, but has a non-protectionist purpose, the means chosen to attain the non-protectionist purpose must be necessary, or appropriate and adapted, and in this case, the higher deposits on non-refillable beer bottles was not found to be a proportionate means.

Castlemaine Tooheys Ltd v South Australia,[1] is a High Court of Australia case that deals with whether a particular Act of South Australia contravenes Section 92 of the Constitution of Australia, which is about the freedom of interstate trade.


The Beverage Container Act 1975 (SA) required a mandatory deposit of 5 cents per bottle, which would be refunded when they were returned; refillable bottles were exempt from this deposit. A later amendment, the Beverage Container Act Amendment Act 1986 (SA) subjected non-refillable bottles to a refund of 15 cents and refillable bottles to a refund of 4 cents. Furthermore, the refund for non-refillable bottles was to be implemented by retailers, instead of a collection depot.

The Bond brewing companies brewed beer, most notably from the Tooheys Brewery, outside of South Australia, and they used non-refillable bottles as opposed to their South Australian counterparts. Although a 5 cent deposit would not have disadvantaged the Bond companies, the later Act's higher deposit and refund mechanism acted together to make their beer uncompetitive. Around the time of the amending Act, the Bond companies' advertising campaign had increased their market share at the expense of the principal South Australian brewer. The plaintiffs sought a declaration that the laws were invalid as being contrary to section 92.


Although all parties conceded that the increase in the deposit disadvantages the Bond companies, the question to be resolved was whether it was permissible for the state legislation to disadvantage interstate beer over local beer, if it on its surface was directed at solving an environmental problem. The court's unanimous decision was that, in this case, the legislation was contrary to section 92 of the constitution.

Prima facie, a law that imposes a prohibition or requirement on both interstate and intrastate trade, or upon a particular interstate trader, is not protectionist. However, if the law is designed to secure a legitimate object and a non-discriminatory method exists, then it may suggest that the object is instead to discriminate. The burden upon interstate trade and commerce is legitimate provided that it is merely incidental to the attainment of the legitimate object, or if such regulation may be necessary or appropriate and adapted for the protection or enhancement of the welfare of the community.

The joint judgment by Mason CJ, Brennan, Deane, Dawson and Toohey JJ outlines the reasons why the 1986 legislation is not appropriate and adapted to the protection of the environment. The magnitude of the difference in refund between refillable and non-refillable bottles greatly exceeded the amount required to disadvantage the sale of beer in non-refillable bottles. The judges also criticised the part of the scheme that allowed for refillable bottles but not non-refillable bottles to be returned to a collection depot as not capable of justification as a means of achieving the environmental aims. The judges clarified that discrimination against interstate trade may still apply even though the "discrimination is directed at, or sustained by, all, some or only one of the relevant interstate traders". Furthermore, the judges did not think that the litter problem or the need to conserve energy resources provided a justification for the implementation of this scheme; they made reference to the quantitative impact of such a law, and the fact that alternative measures were open to the legislature to achieve these aims.

The joint judgment of Gaudron and McHugh JJ accepted the question of whether a law is appropriate and adapted, but also provided some guidance as to discrimination: "the essence of the legal notion of discrimination lies in the unequal treatment of equals, and, conversely, in the equal treatment of unequals".

See also


  1. ^ Castlemaine Tooheys Ltd v South Australia [1990] HCA 1, (1990) 169 CLR 436 (7 February 1990), High Court.
  • Winterton, G. et al. Australian federal constitutional law: commentary and materials, 1999. LBC Information Services, Sydney.
{{bottomLinkPreText}} {{bottomLinkText}}
Castlemaine Tooheys Ltd v South Australia
Listen to this article

This browser is not supported by Wikiwand :(
Wikiwand requires a browser with modern capabilities in order to provide you with the best reading experience.
Please download and use one of the following browsers:

This article was just edited, click to reload
This article has been deleted on Wikipedia (Why?)

Back to homepage

Please click Add in the dialog above
Please click Allow in the top-left corner,
then click Install Now in the dialog
Please click Open in the download dialog,
then click Install
Please click the "Downloads" icon in the Safari toolbar, open the first download in the list,
then click Install

Install Wikiwand

Install on Chrome Install on Firefox
Don't forget to rate us

Tell your friends about Wikiwand!

Gmail Facebook Twitter Link

Enjoying Wikiwand?

Tell your friends and spread the love:
Share on Gmail Share on Facebook Share on Twitter Share on Buffer

Our magic isn't perfect

You can help our automatic cover photo selection by reporting an unsuitable photo.

This photo is visually disturbing This photo is not a good choice

Thank you for helping!

Your input will affect cover photo selection, along with input from other users.


Get ready for Wikiwand 2.0 ๐ŸŽ‰! the new version arrives on September 1st! Don't want to wait?