Mason J restated the rejection of the narrow view of excise, but noted that the broad view was tempered by the insistence of the Court that there be a strict relationship between the tax and the goods (the criterion of liability approach), and the problem of defining that relationship. He referred to the formulation in Bolton v Madsen, which "has not emerged unscathed from the more recent decisions on s 90"; for example, there was Barwick CJ's formulation of a variety of factors in Anderson's Pty Ltd v Victoria. His Honour notes that section 90 would do very little to add to the powers of the Commonwealth's economic and financial powers, if the States were allowed to circumvent the prohibition in section 90 through the criterion of liability approach.
Mason J reiterated the rejection of a narrow view of excise, but noted that the broad view was tempered by the Court's insistence on a strict connection between the tax and the goods (the criterion of liability approach), and the challenge of defining that relationship. He referred to the formulation in Bolton v Madsen, which "has not emerged unscathed from more recent decisions on s 90"; for example, there was Barwick CJ's formulation of various factors in Anderson's Pty Ltd v Victoria. His Honour noted that section 90 would contribute little to the Commonwealth's economic and financial powers if States could circumvent the prohibition in section 90 through the criterion of liability approach.