Opinion Number. 154

Subject

CUSTOMS WHETHER GOVERNOR-GENERAL HAS POWER TO REVOKE PROCLAMATION PROHIBITING EXPORT OF GOODS ISSUED BY GOVERNOR OF COLONY BEFORE FEDERATION

Author
Key Legislation

CONSTITUTION, ss. 52 [ii), 69, 70 : CUSTOMS ACT 1901, s. 112

Date
Client
The Prime Minister

The Prime Minister:

The Administrator of the Government of Tasmania, by proclamation dated 21 August 1900, made under the State Customs Act 1897, section 187, prohibited the exportation from Tasmania to China of arms, ammunition, gunpowder, and warlike stores.

The Secretary of State for the Colonies, by telegraphic despatch to the Governor-General, for transmission to the State Governors, stated that the Imperial proclamation against the export of arms, etc. to China would be removed, and requested that any similar colonial proclamations should be repealed.

The Governor of Tasmania has forwarded to the Governor-General a letter from the State Premier, covering an opinion of the Solicitor-General(1) to the effect that, assuming that the proclamation above referred to is in operation, it seems that it must be rescinded by the Governor-General and not by the State Governor.

The Solicitor-General, in his opinion, points out that since the proclamation was issued the Commonwealth has been established, and the Federal Parliament has enacted the Customs Act 1901, of which section 112 contains a provision substantially the same as the State enactment under which the proclamation was made.

The Prime Minister asks to be advised upon the matter.

I do not think that anything in the Constitution or in the Customs Act has deprived this proclamation of effect.

But I think that, in view of the transfer of the Customs Departments and the enactment of section 112 of the Customs Act 1901, the prohibition of the exportation of arms, etc. is a matter which, under the Constitution, has passed to the Governor-General in Council, and therefore that the proclamation should be rescinded by the Governor-General in Council as suggested.

[Vol. 4, p. 28]

(1) Of Tasmania..