Opinion Number. 121



Key Legislation

CONSTITUTION, ss. 89,90,91,92,93

The Prime Minister

The Prime Minister

On 27 August 1902 the Treasurer of Tasmania wrote to the Treasurer of the Commonwealth in support of the contention that Tasmania should be credited with the import duty paid in another State, before the imposition of the uniform tariff, on goods transferred to Tasmania after that date.

It seems that Sir George Turner replied that the Minister for Trade and Customs had ruled that section 93 of the Constitution applied only to duties collected under the uniform tariff.

The Solicitor-General of Tasmania gave an opinion (dated 22 October 1902) to the effect that Tasmania was entitled to be credited with all duties of customs collected in other States upon goods which were imported from 1 January 1901 to the imposition of uniform duties, and which were transferred to Tasmania after the imposition of uniform duties.

On 24 November the Treasurer of Tasmania forwarded a copy of this opinion to Sir George Turner, with a letter from which the following is an extract:

I will be glad if you will place before your Attorney-General all correspondence and papers re our claim for short-credited duty, together with the opinion of our Solicitor-General, in order that he may advise you on the matter in dispute.

I may say that in the light of the Solicitor-General's opinion, in which the Hon. the Attorney-General (Sir Elliot Lewis) concurs, it will probably be necessary to amend and enlarge our claim. The claim for f 11,066.12.7 was calculated on the basis of the duties payable under the uniform tariff. But if the contention of the Solicitor be upheld, viz. that the full amount of the duty paid in other States on the goods imported there between 1 January and 8 October 1901 and subsequently transferred to this State is under section 93 of the Constitution to be deemed to have been collected in Tasmania, and is therefore due to Tasmania-then it will probably be found that a higher duty was paid in other States than that of the uniform tariff on which our claim has been based, and that in that respect and to that extent our claim will need to be amended.

The Treasurer submitted the matter to the Prime Minister with the following minute (dated 29 November 1902):

As the Attorney-General and the Minister for Customs do not agree, and as this is a matter of importance and I would like the necessary adjustments made in December, I suggest that the whole question be considered by the Cabinet, and therefore forward papers for your consideration, and think it would be well to forward them to Mr Kingston so that he may be fully aware of the position taken up.

Although a strict reading of the section may be as Mr Kingston considers it, I think equitably Tasmania is right.

The Prime Minister now refers the papers to me for further advice.

My previous advice on the question is contained in detail in the following opinions: opinion of 26 September 1901(1) given to the Treasurer; opinion of 6 February 1902(2) given to the Auditor-General; opinion of 26 March 1902(3)given to the Minister for Trade and Customs.

After full consideration, I adhere to those opinions, which agree with the opinion of the Solicitor-General of Tasmania. To the views thus expressed it is only necessary to add the following remarks.

In support of Mr Kingston's view-that section 93 only applies to duties collected under the uniform tariff-it has been suggested that the second paragraph of section 92, which provides for the payment on interstate transfer of the difference between the duty previously paid and the duty under the uniform tariff, entitles the consuming State to be credited with the difference, and impliedly negatives the claim to be credited with anything more. This suggestion practically means that section 92 is to be regarded as being interposed between sections 89 and 93, and as making provision for an intermediate class of cases not contemplated by either. In this connection the opening words of the paragraph-' . . . notwithstanding anything in this Constitution'-are relied upon as taking these duties out of the ambit of section 93.

With this view I cannot concur, for the following reasons:

  1. Section 92 relates only to the collection of duties, and has nothing to do with their subsequent crediting. The first paragraph, declaring that on the imposition of uniform duties interstate trade shall be absolutely free, involves a prohibition of interstate duties. The second part makes a temporary exception to this declaration; and as the principle of freedom of interstate trade, expressly declared in this section, may also be implied from the whole scope of the Constitution, the exemption is prefaced with a sweeping non obstante-Notwithstanding anything in the Constitution. But inasmuch as section 92 has no relation to the crediting of duties, the 'non obstante'' can have no bearing upon the interpretation of section 93.
  2. Section 93 is clearly intended, in its operation, to follow immediately upon section 89, without any hiatus. Section 89 deals with crediting and debiting during the period ending with the imposition of uniform duties; section 93 does the same for the period beginning with the imposition of uniform duties. The interposition of sections 90 to 92, which deal with certain other consequences which accrue at the moment of imposition, does not interpose anything between the operation of the two crediting sections. So far as the construction of section 93 is concerned, sections 90 to 92 are purely parenthetical. Section 93 explicitly refers to section 89, and confirms it for the succeeding period, subject to one particular adjustment. The two sections together provide completely for the crediting of revenue during two consecutive periods; and it is impossible to read section 92 as prescribing any intermediate system of crediting.

[Vol. 3, p. 41]

(1) Opinion No. 19.

(2) Opinion No. 42.

(3) Opinion No. 52.