The Minister for Trade and Customs:

The State Government of New South Wales is demanding payment of licence fees from brewers, in terms of the New South Wales Liquor Act 1898, although such brewers hold licences under the provisions of the Beer Excise Act 1901, and the Minister for Trade and Customs wishes to be advised whether the action of the New South Wales Government in demanding the payment of such fees is consistent with the Commonwealth Act mentioned, and whether the provisions of the State Act as to such fees are not invalid.

The question is one between the brewers and the Government of New South Wales, and as the Commonwealth Government is no party to the dispute it seems undesirable that I should give an opinion on the question.

For the information of the Minister for Trade and Customs, however, I may point out the principles which appear to me to govern the matter.

The Federal Parliament has exclusive power of legislation with regard to the Department of Customs and Excise, and has, in the Beer Excise Act 1901, in order to protect the excise revenue of the Commonwealth, provided that no person shall make beer unless he is licensed to do so (section 8). The Act does not expressly repeal any State Act; but by the operation of the Constitution, State Acts imposing duties of customs or excise have ceased to have effect (section 90); and State laws inconsistent with Commonwealth laws are invalid to the extent of the inconsistency (section 109).

'Inconsistent' is a wider word than 'repugnant'. The test of inconsistency would seem to be whether the two laws can reasonably stand together. In the United States, it has been held that where a State Act and a Federal Act operate upon the same subject-matter, and prescribe different rules concerning it, the State Act is superseded.

The New South Wales Liquor Act 1898, (section 71) requires every person who desires to carry on the business of a brewer, or of a spirit merchant, to take out a brewer's or a spirit merchant's license, as the case may be, for which an annual fee of £20 is prescribed.

The States have power, for the purpose of raising revenue for local purposes, to impose license fees upon trades within the State-so long as such fees are not inconsistent with the Constitution or with Federal law.

If it can be shown either-

1. that the license fee on the trade of manufacturing beer-an excisable article-is in effect a duty of excise upon beer; or
2. that the sole purpose of this license, and the fee charged therefor, is the protection of the excise revenue, so that the provisions of the Beer Excise Act cover precisely the same ground;

it would seem to follow that the State law is superseded.

But if it is held that the State law is not an excise duty, but a law for raising local revenue for the State by a license fee on particular trades-and that its purpose is not the protection of the excise revenue-it would remain in force.

It may be mentioned that the New South Wales Liquor Act 1898 is intituled 'An Act to consolidate the Laws relating to Publicans and other Persons engaged in the sale of Liquor'. The provisions relating to the licensing of brewers and spirit merchants were formerly contained in the Licensing Act o/1882, intituled 'An Act to remodel the law relating to Publicans and other Persons engaged in the sale of Liquor'-which repealed similar provisions contained in the New South Wales Act 13 Vic. No. 26, intituled 'An Act to prevent unlawful Distillation and to provide for the protection of the Revenue arising from the Duties on Spirits'.

The history of this legislation therefore affords some ground for the argument that its purpose is the protection of the excise revenue; whilst its present form rather supports the view that it is for the purpose of regulating the domestic liquor traffic.

[Vol. 4, p. 45]