The Comptroller-General of Trade and Customs has forwarded the following memorandum to me for advice:

• Representations have been made to this Department by the Victorian Associated Brewers and others for action to prevent the use of the terms ‘Ale’, ‘Beer’ and ‘Stout’ in the description of non-excisable beverages, i.e., beverages containing less than 2% of proof spirit.

1. In this connexion the Department’s attention has been drawn to a prospectus for the formation of a company to manufacture on a large scale products of this kind which it is proposed to market under the names of ‘Red Lion Malt Ale’ and ‘Red Lion Extra Malt Stout’.
2. It has been suggested by brewers that they are entitled to statutory protection against misrepresentation by which consumers of legally brewed beverages upon which excise is paid are misled into purchasing others which pay no excise, although similarly described.
3. It has also been suggested that the revenue will be affected by any substantial increase in the consumption of these non-excisable beverages.
4. One request made was that action be taken by the Commonwealth on the lines of the U.K. Finance Act 1932, under section 12 of which provision is made for the protection of the revenue arising from the customs and excise duties on beer.
5. It is desired to obtain an opinion as to the legal position of this matter, i.e., as to whether the Commonwealth has power to enact laws to prevent persons who manufacture in Australia non-excisable products, of the nature indicated above, from describing such products as ‘Ale’, ‘Beer’ and ‘Stout’.

In my opinion, the Commonwealth has no general power to prohibit the use of the terms ‘Ale’, ‘Beer’ and ‘Stout’ in connexion with liquors upon which excise duty is not payable. Under its powers with respect to interstate trade the Commonwealth has power to regulate interstate trade in such liquors, but, as any such legislation would not apply to intrastate trade, its efficacy would be doubtful.

The matter of misrepresentation in connexion with the sale of goods is one within the province of the States.

I do not think that the Commonwealth could justify any legislation on the lines of section 12 of the Finance Act 1932 (U.K.) on the ground that such legislation was incidental to the imposition of duties of excise.

[Vol. 28, p. 431]