Opinion No. 396
PREFERENCE TO ONE STATE OVER ANOTHER STATE
WHETHER VARIATIONS IN POSTAGE RATES ARISING UNDER STATE LAWS ADMINISTERED BY COMMONWEALTH AMOUNT TO
CONSTITUTION, ss. 99,108 : POST AND TELEGRAPH RATES ACT 1902 : POSTAL RATES ACT 1910
26 January 1911
The Secretary, Postmaster-General's Department
The Premier of the State of New South Wales has written to the Prime Minister in relation to the bringing into operation of the Postal Rates Act 1910. His letter is as follows:
I have the honour to inform you that this Government has lately given consideration to the probable effect, in view of the terms of the Constitution Act, of delaying the bringing into operation of the provisions of the Postal Rates Act.
The view that presents itself to my mind is that, as it is understood that the book-keeping period practically terminated on 31st ultimo, the universal postage provisions of the Act in question should, considering the case from a strictly constitutional point of view, operate concurrently with that event, in order to avoid violation of the terms of sec-tion 99 of the Constitution. In other words, that, as one State at least is already in the en-joyment of penny postage, that State will, to all intents and purposes, from the 1st instant until the date upon which the Postal Rates Act is, by proclamation, brought into oper-ation, be receiving a Federal service for, say, one penny, for which New South Wales and the other States will be called upon to pay twice that sum.
There are at least two aspects in which this State may be concerned by the absence of any provision such as that ensured by the bookkeeping system and the existence, in part of the Commonwealth only, of what have been referred to in some quarters as preferential postal rates. These are:
- The inequity, in view of the provisions of the Constitution, of continuing the prac-tice of what may be termed 'twopenny postage' in New South Wales, as against 'penny postage' already in existence in at least one other State of the Common-wealth; and
- The extra expenditure entailed in connection with the postal requirements of the Public Service by continuance of existing methods until the Postal Rates Act shall operate.
My object in addressing you is to state that the matter has engaged considerable public attention in New South Wales and has on more than one occasion been the subject of ref-erence in Parliament.
In view of this circumstance and the fact that my colleague the Attorney-General has expressed the opinion that the absence of uniform postal rates constitutes a discrimination which conflicts with the provisions of section 99 of the Constitution, I have the honour to urge upon your attention the necessity for immediate action in the direction of obviating or terminating a course of action which would appear to infringe an important provision of the Constitution Act.
The letter has been referred to the Postmaster-General's Department, and that De-partment has referred it to me for advice.
Section 99 of the Constitution provides that:
The Commonwealth shall not, by any law or regulation of trade, commerce, or rev-enue, give preference to one State or any part thereof over another State or any part thereof.
The postal rates which were in force in the different States under State law as exist-ing immediately prior to the taking over of the Postal Department by the Common-wealth have (except rates for newspapers, which were made uniform by the Post and Telegraph Rates Act 1902) continued in force ever since, and, if there is any discrimi-nation in connection with those rates, that discrimination existed at and has continued to exist since the establishment of the Commonwealth.
The discrimination, if any, does not arise from any law or regulation of the Com-monwealth, but from the State laws and regulations which were in force at the time of the establishment of the Commonwealth, and which are continued in force by section 108 of the Constitution until superseded by a law of the Commonwealth.
It is clear, therefore, that section 99 of the Constitution has no application to the case under consideration.
It may be pointed out that, under the Constitution, the Commonwealth was bound to pass uniform duties of Customs within two years after its establishment, but that no time was fixed within which it was bound to provide for uniform postal rates or to re-move discriminations which were in existence at its establishment.
I am of opinion, therefore, that there is nothing in the Constitution to require the Postal Rates Act 1910 to be brought into operation at any particular time, but that the Government may bring it into operation on such date as it thinks fit to appoint, and that delay in bringing it into operation would not be a discrimination within section 99 of the Constitution.
[Vol. 8, p. 215]