Opinion Number. 198

Subject

FREEDOM OF INTERSTATE TRADE POWER OF STATE TO PROHIBIT BY REGULATION IMPORTATION OF GOODS

Key Legislation

CONSTITUTION, s. 92

Date
Client
The Comptroller-General of Customs

According to a paragraph in the Melbourne Age of 20 October 1904, a Food Adulteration Bill before the Victorian Parliament contains a provision that the Governor in Council, on the recommendation of the Board of Health, may make regulations-

to prohibit or restrict the importation of any substance the use of which is likely to be injurious to health or which is likely to afford facilities for fraud.

The Comptroller-General of Customs asks whether I consider that a State Parliament can pass an Act with this provision.

A State Parliament can pass such an Act-but whether it would be constitutional-or whether any or every regulation, made within the scope of the enactment, would be valid-is another matter.

I would refer to the undermentioned opinions: opinion of 23 October 1902(1) and opinion of 12 December 1902(2) both given in connection with the prohibition by the Victorian Department of Agriculture of introduction of poultry from N.S.W. and S.A.

The proposed Act does not, of itself, purport to prohibit or restrict the importation of any articles, but only to enable regulations to be made for such prohibition or restriction. Its constitutionality could only be judicially tested on action taken under such a regulation-and the question would then perhaps be as to the constitutionality of the regulation rather than of the Act.

Though the power purported to be given to make regulations is so wide that regulations within the scope of the power might easily be unconstitutional, I do not Attorney-General think that it could be said that the proposed Act itself would be void for unconstitutionality.

[Vol. 4, p. 399]

(1)Opinion No.101.

(2)Opinion No.118.