The Prime Minister:

The State Collector, Tasmania, has submitted the following memo to the Comptroller-General:

As the State Government desire this Department to continue the administration of the Passengers Act 1885 as heretofore with the object of excluding undesirable persons from this State who may arrive from other States of the Commonwealth-I shall be glad to have authority-as its operation-so applied-would seem to conflict with section 92 of the Commonwealth Constitution Act.

The Minister for Trade and Customs referred the matter to the Minister for External Affairs with the following minute:

Forwarded to the Minister for External Affairs who may desire to consider the point raised by Mr Barnard. I am prepared to let my officers act as wished by the State Government unless Sir Edmund Barton sees some objection.

The Prime Minister asks to be advised whether the Tasmanian statute contravenes section 92 of the Constitution.

The substantive section of the Act, to which the remaining sections are subsidiary, is section 3, which is as follows:

If the Collector shall certify that any passenger shall have arrived in Tasmania on board any ship being either lunatic, idiotic, deaf, dumb, blind, or infirm, or from any cause unable to support himself, or likely, in the opinion of the Collector, to become a charge upon the public or upon any public or charitable institution, the Collector shall require the owner, charterer, or master of such ship, within Seven days after her arrival, to execute a bond to Her Majesty in the sum of One hundred Pounds for every such passenger.

1. As regards passengers coming to Tasmania from beyond the Commonwealth, section 92 of course has no application. Nor is it superseded by the Immigration Restriction Act 1901, as it is not in pari materia-its object being, not to prohibit immigration, but to secure the State Government against loss. I therefore see no reason why the Act should not be enforced with respect to passengers from beyond the Commonwealth.
2. With regard to interstate intercourse the question is more difficult. Section 92 of the Constitution declares that, upon the imposition of uniform duties, 'trade, commerce, and intercourse among the States . . . shall be absolutely free'. The exact scope of this provision, and the extent to which it interferes with what might be called the 'police powers' of the States, it is unnecessary now to examine; but in my opinion it is at the least doubtful whether, in face of section 92, any validity can be allowed, in respect of interstate intercourse, to the Tasmanian Act-which imposes a burden, in the nature of a tax, upon the admission not only of lunatics and idiots, but also of all persons who are deaf, dumb, blind, infirm, unable from any cause to support themselves, or likely to become a public charge.
3. The Commonwealth Government ought not to take the responsibility of executing a State Act the constitutionality of which is open to such serious doubt.

[Vol. 3, p. 268]