The Minister for Trade and Customs:

Section 32 of the West Australian Customs Consolidation Act 1892 prohibits the importation of (inter alia) 'Any article or goods, being a manufactured or natural product, the importation of which may be prohibited by order of the Governor'. On 19 August 1898 an Order in Council was made under this section prohibiting the importation of essences of wines into the Colony.

A case of such essences imported at Albany has been detained, and the State Collector has asked for instructions.

The Minister for Trade and Customs asks to be advised on the following questions:

1. Is the W.A. Act operative against this Australian manufacture?
2. Can the Commonwealth or W.A. legislate to exclude the passing of specified local manufactures between the States? Section 55 of the Customs Act is worthy of note in this connection.

Section 55 of the Customs Act 1901 provides that:

All goods lawfully prohibited to be imported into any State shall as regards that State be prohibited imports for the purposes of this Act.

In my opinion State laws, whether passed before or after the imposition of uniform duties, prohibiting the interstate transfer of particular articles or classes of articles, are now, generally speaking, of no effect, as being violations of interstate freedom of trade.

This is subject to the qualification that any such laws made in the bona fide exercise of the 'police power', and reasonably necessary to prevent the introduction of diseased animals, etc. may be valid; see my opinion of 23 October 1902⁽¹⁾ on the prohibition by the Department of Agriculture (Victoria) of the introduction of poultry from New South Wales.

The provision of the W.A. Act quoted above, conferring as it does an unlimited power of prohibiting the introduction into W.A. of any article whatever, is in my opinion, in view of section 92 of the Constitution, of no effect as regards interstate transfer.

I think that section 5 5 of the Customs Act 1901 does not apply to interstate transfer but only to importation from abroad. But even if it did apply to interstate transfer, it is limited to cases of goods 'lawfully prohibited to be imported' into a State, and therefore is not in conflict with section 92 of the Constitution.

[Vol. 3, p. 427]

(1) Opinion No. 101.