Opinion Number. 1120



Key Legislation


The Comptroller-General of Customs

The Comptroller-General of Customs has forwarded to me the report, dated 17 January 1921, of the Inter-State Conference of Fruitgrowers and Government Fruit Experts to the Minister for Trade and Customs, which that Minister has minuted as follows:

I wish the marked portion of page 4 to be submitted to the Attorney-General for an opinion as to whether section 99 of the Constitution would in his opinion prevent this proposal being given effect to if it were considered desirable to take the course proposed.

The marked portion of the report, referred to in the Minister's minute, follows a statement of resolutions carried by the Conference recommending standards, for packing and grading apples and for sizes and measurements of apple and pear packages for export for overseas markets, and is as follows:

On the second day of sitting it was decided to recommit the whole of the above resolutions with a view to considering the position of Tasmania thereunder. After a full discussion it was resolved that a separate set of standards be recommended for Tasmania and that the fruit shipped should be marked 'Tasmania' as against fruit marked 'Australia' shipped from the mainland. Following upon this resolution the Tasmanian delegates submitted a report to Conference. After a full discussion it was decided that the report of the Tasmanian delegates be received and forwarded to the Hon. the Minister, but without any recommendation for its adoption. Section 99 of the Constitution provides as follows:

The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

It appears from the report submitted to the Conference by the Tasmanian representatives that the Tasmanian fruitgrowers are desirous that the Board constituted under the Apples and Pears Act 1918 of Tasmania (No. 21 of 1918) should determine the standards for overseas shipments suitable to Tasmania. Under that Act the Board at the present time fixes the standards of packing and grading of apples and pears for export to other parts of the Commonwealth.

Paragraph (6) of the report is as follows:

Owing to climatic conditions there are occasions when large quantities may be affected with black spot to a great extent. By this is meant that growers are often prevented (owing to wet weather) from spraying for this disease at the correct period, in which case the fungus is more prevalent. Again wet or damp weather sometimes prevails at periods just prior to harvesting, causing the fungus to make its appearance at an awkward time, as the grower has already guaranteed his space to the shipping companies and should he fail to supply the fruit, he is called upon to pay dead freight. Owing to this there are fairly large quantities affected with spot, the greater proportion of which are used in the jam, cider, and evaporating factories. Still in addition to this there are fairly large quantities slightly affected, very suitable for domestic use, which, in the past, have returned profitable prices to the grower. If the standards outlined by other delegates are accepted by the Government and made to apply to Tasmania, growers in this State would be prevented from marketing good domestic apples. The report concludes with the following words:

On behalf of Tasmanian fruitgrowers we cannot and do not accept the standards as fixed by delegates from other States as being suitable to the largest apple-exporting State, viz. Tasmania.

It appears, therefore, that the Tasmanian growers desire the standards for Tasmania to be lower than those for the other States, for the reason, presumably, that, owing to climatic conditions large quantities of Tasmanian apples and pears may, at times, not reach the standard fixed.

A lowering of the standard would, I presume, mean that the descriptive words 'Extra Fancy', 'Fancy' and 'Choice' would be applied to Tasmanian fruit of a lower standard than that of the other States. Such a distinction would, in my opinion, be a preference within the meaning of section 99 of the Constitution, and it would not, I think, be overcome by the employment, in the case of Tasmanian fruit, of the word 'Tasmania' instead of the word 'Australia'. In fact to allow the use of a distinctive description such as that would in itself, in my opinion, be a preference.

Any such distinction made as regards standards or markings would, I think, tend to give an advantage to Tasmania at the expense of the other States.

In my opinion, therefore, any attempt to give effect to the resolution of the Conference that separate standards be adopted as regards Tasmania would be a violation of section 99 of the Constitution.

[Vol. 18, p. 5]