Opinion No. 403
FREED0M 0F INTERSTATE TRADE
WHETHER STATE HAS POWER TO FORBID IMPORT OR EXPORT OF GOODS UNTIL FURNISHING OF STATISTICAL RETURNS
CONSTITUTION, s. 92 : THE MARINE BOARDS ACT AMENDMENT ACT 1910 (TAS.), s. 38
27 February 1911
The Comptroller-General of Customs
The Comptroller-General of Customs asks to be advised on the questions raised in the following memorandum:
Advice is desired whether the action of the Tasmanian Marine Boards in requiring the information specified herein is in conflict with the Constitution. The details of information, complaint of which is made, are not necessary for the purpose of collecting wharfage, but are obtained merely for statistical purposes and their insistence is undoubtedly a hindrance to trade and contrary to the intention of section 92 of the Constitution Act.
Section 38 of the Tasmanian Marine Boards Act Amendment Act 1910 requires every marine board and harbour trust, whenever directed by the Governor, to collect in such manner, from such persons or classes of persons, and at such times as may be prescribed, such statistics as the Governor may prescribe. Penalties are imposed for various breaches of the section, and the power is given to the Governor to make regulations for giving effect to it. The following regulations have been made accordingly, taking effect on and after 1 February 1911:
Every owner, or agent for the owner, of goods being exported from any port of Tasmania to any port in any one of the other States of the Commonwealth, whether such goods are intended for export to such State of the Commonwealth, or for re-export thence, or of goods being exported direct to any port beyond the limits of the Commonwealth, shall, before the shipment of such goods, furnish to the duly authorised statistical collector appointed for the purpose at such port in Tasmania a return filled in with all the particulars required in the first schedule of these regulations.
Every owner, or agent for the owner, of goods being landed at any port of Tasmania from any port in any one of the other States of the Commonwealth, whether such goods were originally received from outside the Commonwealth or not, or goods being landed direct from any port beyond the limits of the Commonwealth shall, before obtaining possession of such goods, furnish to the duly authorised statistical collector appointed for the purpose at such port in Tasmania a return filled in with all the particulars required in the second schedule to these regulations.
Entry Forms for Imports (in triplicate). Entry Forms for Exports (in duplicate) can be obtained from the offices of the various Marine Boards and Harbour Trusts.
Note-The information to be given hereon is required under the authority of The Marine Boards Act Amendment Act 1910. The individual particulars will be used solely for statistical purposes, and will be regarded as secret and confidential. The aggregate only of the returns will be published and, save with the written consent of the informant, no part of the contents of his return can or will be disclosed.
In my opinion, the regulations above set out are ultra vires the Constitution.
Section 92 of the Constitution provides that 'trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free'.
The regulations require, inter alia, that, for what purport to be statistical purposes, certain entry forms shall be furnished, in the case of imports, before obtaining possession of the goods, and, in the case of exports, before the shipment of the goods. In
other words, the State law purports to forbid interstate traders from receiving or despatching goods from or to other States until certain conditions have been complied with.
In my opinion, this hampers interstate trade, and is a breach of the constitutional declaration that such trade shall be free.
The regulations contain similar provisions as to external trade. Section 92 of the Constitution does not apply to these, but I think that the portions of the regulations which violate that section are not severable from the others, and therefore that the regulations are void altogether.
Even if the regulations were framed in a form which did not require entry to be made before shipment or receipt, I think there would be grave doubt whether the court would not regard them as restrictions of interstate commerce rather than bona fide statistical regulations of the State.
[Vol. 8, p. 293]