Opinion Number. 1340



Key Legislation

CONSTITUTION ss 51(ii),(iii), 88, 90, 99, 117, 122

The Secretary, Department of Home and Territories

The Secretary, Department of Home and Territories, has forwarded me the following letter from the Australian Investment Agency with a request for advice:

Referring to our conversation on 21st instant when the question of Darwin being a free port was touched upon, I have enquired further into the matter, and I am informed that duties of customs may be completely abolished so far as relates to the Northern Territory under the Constitution as at present existing, by means of an appropriate law under section 122. That section reads as follows:

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of any accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

I am further advised that neither section 51, sub-section 2, nor sections 99, 117, 88, 90 nor any other provisions of the Constitution prevents its abolition.

When I receive a written opinion I will send you a copy, in the meantime I thought you would be interested to know that the above view can be taken. I am not arguing in favour of a free port but if it is possible under the Constitution then one can proceed to consider the points for and against it.

Those who argue that it is an infringement of the Constitution for the Commonwealth to make special arrangements with regard to the Territory which they are not prepared to make for the States might equally argue that it was also an infringement to make such an arrangement as was made between your Department and the Postmaster-General’s last week, whereby losses occurring from greater facilities being afforded in regard to communications should be chargeable to a special fund.

Section 88 of the Constitution provides that ‘uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth’. The requirement implied by the section is that the duties so imposed shall be uniform throughout the Commonwealth. The Commonwealth, in a geographical sense, consists of the six States, as existing at the establishment of the Commonwealth, and includes any accretions of new territory to a State. Upon the surrender of the Northern Territory to the Commonwealth by the State of South Australia, that Territory did not cease to be part of the Commonwealth.

The special power of the Parliament to make laws, under section 122 of the Constitution, for the Government of a surrendered Territory is intended to permit of the passage of legislation providing for the local regulation and government of the Territory, the Commonwealth being as regards that Territory, the sole law-making authority. There is nothing in section 122 or in the Commonwealth Acts relating to the Territory which lessens, so far as the Northern Territory is concerned, any provision of the Constitution which applies to it as part of the Commonwealth.

I cannot see that sections 51(ii), 99 and 117 of the Constitution are relevant to the present question.

I desire to point out that placitum (iii) of section 51 requires that bounties shall be uniform throughout the Commonwealth.

The power to grant bounties and the power to impose duties of customs and excise become exclusive to the Commonwealth (section 90) upon the imposition of uniform duties of customs. There is an obvious relation between the grant of bounties and the imposition of customs duties. Seeing that bounties must be uniform throughout the Commonwealth it is a fair assumption that the ‘uniformity’ required by section 88 should be given a co-extensive application.

In my opinion the Constitution requires not only the imposition of duties uniform throughout the Commonwealth but the continuance of uniform duties.

[Vol. 20, p. 320]