Opinion No. 231
WHETHER COMMONWEALTH HAS POWER TO TAKE OVER MANUFACTURE OR IMPORTATION
CONSTITUTION, s. 51 (i)
30 January 1906
Senator G. F. Pearce
In your letter of 6 December 1905 you ask me, on behalf of the Select Committee of the Senate appointed to inquire into the existence of a tobacco monopoly, for my opinion on the following questions:
- In the event of the Committee reporting that 'it is advisable' that the industry of tobacco manufacture, or importation, or any part of it, should be taken over by the Government, are there any powers in the Constitution, express or implied, that would enable such action to be taken by the Government or the Parliament? Or
- Is there anything in the Constitution which expressly or impliedly prohibits the Government or Parliament taking such action?
I find that on 18 July 1903(1), Mr Attorney-General Deakin advised the Royal Commission on the Bonuses for Manufactures Bill, in connection with the establishment of ironworks by the Commonwealth, that the Commonwealth has no power to establish and conduct manufactures, except as incidental to the execution of some power vested in the Commonwealth-e.g. defence or the construction of railways. The text of the opinion is printed on p. 184 of the Report of the Commission.
I also find that on 17 March 1904(2), Mr Attorney-General Drake, having been asked by Senator Playford to advise as to the power of the Commonwealth to establish the manufacture of tobacco, cigars and cigarettes adopted Mr Deakin's opinion-adding that the only difference between the iron industry and the tobacco industry, so far as regards the principles there laid down, seemed to be that it was not easy to conceive how the manufacture of tobacco, cigars and cigarettes could be incidental to the execution of any of the express legislative powers of the Commonwealth.
With those opinions I entirely agree.
Your questions cover a wider ground, as they include the business of importation as well as of manufacture. I am of opinion that the power to make laws with respect to trade and commerce with other countries does not extend to enabling the Commonwealth to monopolise, or even to carry on, the 'business of importers'-and that there is no other provision of the Constitution which confers such a power.
My categorical answer to your questions is as follows:
- There is no 'express or implied prohibition' of such action; but neither the Executive nor the Parliament of the Commonwealth has any powers apart from those which are expressly or by necessary implication conferred upon them.(3)
[Vol. 5, p. 156]
(1) Not published [Vol. 3, p. 438], but see Opinion No. 73, endnote (2).
(2) Opinion No. 171.
(3) This opinion was published in Commonwealth of Australia, Purl. Papers 1906, Vol. III, p. 2234
(Appendix J to Report of Royal Commission on Tobacco Monopoly, 1906).