Opinion Number. 196

Subject

LIQUOR WHETHER COMMONWEALTH HAS POWER TO PRESCRIBE DEGREE OF ALCOHOLIC CONCENTRATION OF SPIRITS

Key Legislation

CONSTITUTION, ss. 51 (ii). (xxxix). 52 (ii). 113 : DISTILLATION ACT 1901, ss. 6, 76

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs asks for advice on the question what is the minimum strength permitted for bottled colonial gin.

Section 76 (i) of the Distillation Act 1901 enacts that no person shall sell spirits under twenty-five degrees under proof.

The word spirits in the Distillation Act 1901 includes all liquor upon which under the name of any spirits any excise is imposed by the Parliament and whether distilled or made or in any stage of distillation or making. The definition clearly includes all gin which is subject to excise duty.

I am of opinion that the minimum strength permitted for bottled colonial gin is twenty-five degrees under proof.

Some doubt appears to have been entertained as to whether section 76 (i) is not in conflict with section 113 of the Constitution which enacts that:

All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

The object of section 113 of the Constitution is to enable each State to regulate the liquor traffic in that State, even as regards liquor which, having passed into the State from another State or from abroad, might still be the subject of interstate or external trade. In my opinion, it does not affect the power of the Commonwealth Parliament to pass any law which is 'incidental' to the power to make laws in respect of duties of excise.

Assuming that the provisions of section 76 (i) of the Distillation Act 1901 are properly incidental to the collection and protection of the excise revenue, I am of opinion that they are not unconstitutional.

[Vol. 4, p. 360]