The Comptroller-General of Customs has forwarded me the following minute
for advice:

• Recently the Commonwealth Government agreed to pay a Bounty on Live Cattle exported from the Commonwealth on and after the 1st January, 1923.

2. The Queensland State Government also agreed to pay a similar Bounty on cattle exported from that State. In consequence of this a request was made that the Commonwealth should, in the case of the Northern Territory, increase the Bounty to £1 in order that the Northern Territory exporters would not be at a disadvantage as compared with Queensland exporters.
3. That request was refused and one of the reasons given for the refusal was that such action would be contrary to section 51(iii) of the Constitution Act.
4. In view of the request contained herein by the Secretary, Home and Territories Department, the matter is submitted for favour of advice.

Mr R.I.D. Mallam of Darwin, Northern Territory, has written an opinion expressing the view that the Territory is not part of the Commonwealth and consequently the restrictions in sections 51(iii) and 99 of the Constitution do not apply to the Territory.⁽¹⁾

He relies to some extent upon the authority of statements appearing in the Legislative Powers of the Commonwealth and States⁽²⁾ by Sir John Quick to the effect that the Northern Territory and Papua are not parts of the Commonwealth. So far as Papua is concerned this is true but not as far as regards the Northern Territory.

By covering section 6 of the Constitution the Northern Territory was specifically included in the definition of ‘the States’ which comprised the Commonwealth. It must be remembered that the reference in that section to the Northern Territory is not a reference to a Territory of the Commonwealth.

Mr. Mallam further cites in support of his opinion the decisions of the High Court in the cases of Buchanan v. The Commonwealth (16 C.L.R. 315) and R v. Bernasconi
(19 C.L.R. 629). In the former case the decision turned upon the construction of
placitum 52(ii) of the Constitution. The limitation thereby imposed on the taxation power of the Commonwealth does not apply seeing that the words ‘States or parts of States’ are used. The decision has no bearing on the present question as the requirement in relation to bounties is that they shall be uniform throughout the Commonwealth which, as I have indicated above, includes the Northern Territory. The latter case is not relevant to the matter now under consideration. It involved a consideration of a section of the Constitution relating to trial by jury.

I am of opinion that in view of placitum 51(iii) of the Constitution the Commonwealth Parliament cannot pass valid legislation granting a bounty upon the export of cattle from the Northern Territory differing from the bounty payable upon such export from any other part of the Commonwealth.

I desire to invite attention to the provisions of section 90 of the Constitution which provides, inter alia, that the power of the Commonwealth Parliament to grant bounties on the production or export of goods shall be exclusive. It appears therefore that the action of the Queensland Government in granting bounties upon the export of cattle from Queensland is distinctly unconstitutional.

[Vol. 20, p. 165]

(1) Opinion not found.

(2) Quick, J 1919, The legislative powers of the Commonwealth and States of Australia with proposed amendments, Maxwell, Melbourne.