Opinion Number. 14

Subject

CUSTOMS WHETHER COMMONWEALTH HAS POWER TO PREVENT REFILLING OF CIGAR BOXES : PROTECTION OF REVENUE : TRADE AND COMMERCE : TRADE MARKS

Author
Key Legislation

CONSTITUTION, s. 51 (i), Iii), (xviii). (xxxix)

Date

I am asked whether Federal legislation prohibiting the refilling of cigar boxes, unless all brands and labels originally on the boxes have been effectually removed, would be ultra vires the Constitution-

  1. generally, or
  2. if its operation is confined to persons licensed for excise purposes.

I am of opinion that such legislation can be sustained under three heads:

  1. As a law for the protection of the revenue. The packing of Australian made goods in such a way as to represent them as imported goods, would be a fraudulent device to secure the sale of the home goods under the guise of imported goods, and would in the case of goods on which there was an import duty, have a prejudicial effect on the revenue. The Federal Parliament must have power to protect itself against a fraud of this description.
  2. As a law relating to trade and commerce 'with other countries and among the States'. The power to regulate such commerce casts upon the Federal Parliament the duty of police regulation of such commerce: Prentice & Egan. The Federal Parliament clearly has power to prevent transportation from State to State of articles fraudulently purporting to be what they are not; and I am of opinion that it has the further power of preventing within any State the sale, or the packing for purposes of sale, of articles fraudulently purporting to be the subject of interstate commerce.
  3. As a law with respect to trade marks. A trade mark is some name, symbol, or deĀ¬vice applied or attached to a trader's goods to distinguish them from the goods of other traders. The power of the Federal Parliament extends not merely to passing laws for the registration of trade marks but to the general purpose of preventing the fraudulent use of marks or devices applied to goods for the purpose of identifying their origin.

I therefore think that on these grounds, and especially on the third, the proposed legislation would be constitutional, without the limitation suggested.

[Vol. 1, p. 87]