Opinion Number. 256

Subject

FREEDOM OF INTERSTATE TRADE WHETHER NON-COLLECTION BY STATE OF WHARFAGE RATES ON GOODS CARRIED WITHIN PORT BURDENS INTERSTATE TRADE WHERE LIMITS OF PORT HAVE BEEN UNDULY EXTENDED

Key Legislation

CONSTITUTION, s. 92 . THE MARINE BOARDS AMENDMENT ACT 1895 (TAS.), s. 4 : THE MARINE BOARDS AMENDMENT ACT 1904 (TAS.), s. 7

Date
Client
The Minister for Trade and Customs

The Minister for Trade and Customs asks for my opinion on the following case:

The local Marine Boards of Tasmania under the State law have power subject to executive approval to fix the wharfage rates to be paid on goods landed in any 'port' in their jurisdiction-but do not levy these rates on goods brought from point to point within the limits of a 'port'. (There seems however to be no express exemption in the State Act.)

'Port' is defined in the State Act(1) as extending to and including 'any port, harbour, or haven within the jurisdiction of the Board, and any navigable river or creek in which the tide ebbs and flows, and which is within the jurisdiction of the Board'.

The Marine Board of Hobart has caused to be proclaimed the port as including 'all the waters between the coast of Tasmania and a line drawn from Tasman Island to S.E. Cape'. These limits are altogether beyond what is usually known as the Port of Hobart and indeed contain ports some of them the size of Hobart.

The effect of this proclamation is that goods carried from the limits of this so-called 'port' and landed at Hobart Wharf are freed from the charge for rates whilst those from just beyond those limits are charged.

Now supposing that the executive proclaimed as 'port' such a stretch of coastline as embraced the whole jurisdiction of the Board the result would be that no wharfage would be charged on Tasmanian products at all whilst those from the other States would be liable, and by this means the differential treatment, which recent State legislation in Tasmania was enacted for the purpose of avoiding, would still be in force contrary to the Constitution.

It seems to me that the executive should not proclaim as a port other than what can fairly be deemed so, i.e. that which is the gate into the territory and should not have power by resorting to the means suggested above to restrict or abrogate the plain intention and express provision of the Constitution.

Since the date of the above memo-namely in May 1906, the limits of the Port of Hobart were, by proclamation, further extended to Cape Portland on the N.E. coast, and to S.W. Cape on the S.W. coast (reserving thereout about a mile of coast at George's Bay). The 'Port of Hobart' as thus proclaimed comprises nearly half the entire coastline of Tasmania.

Whether this proclamation is a valid exercise of the power conferred by the Tasmanian Marine Boards Amendment Act 1904, section 7, to 'establish Ports and fix their limits' is a question of Tasmanian law which it is not for me to consider.

The effect of the proclamation is-

  1. to discriminate, as regards Tasmanian trade,
    1. in favour of persons shipping from one place to another within the proclaimed part of the coastline, and
    2. against persons shipping from a place outside that part to a place inside that part;
  2. to discriminate against interstate trade with places within that part, as compared with Tasmanian trade between places within that part.

Over effect (1) the Commonwealth has no control; it is a matter which concerns Tasmanian trade only.

Effect (2) is a discrimination against interstate trade which the Commonwealth, by appropriate legislation under the trade and commerce power, could interfere to control or prevent; but qua discrimination merely, it is not forbidden by the Constitution itself.

The only question is: Is the imposition of these dues upon vessels from other States, while they are not imposed on a great part of the trade from place to place within the State, a tax or burden on interstate commerce-i.e. a breach of the requirement of section 92 of the Constitution that 'trade, commerce, and intercourse among the States . . . shall be absolutely free'?

This question can only be judicially determined in a legal proceeding at the instance of a person aggrieved by the discrimination. In the absence of any judicial
determination upon this section, it is impossible to advise with any certainty; but I am strongly of opinion, in view of the facts-

  1. that the dues, levied as they are at present, are not a charge for services rendered;
  2. that they discriminate against interstate trade as compared with a great part of the intrastate trade,
  3. that the dues are a breach of the constitutional requirement of freedom of trade among the States.

Abundant authority in favour of this view could be cited from decisions upon analogous provisions of the American Constitution. See also previous Attorney-General's opinions of 17 August 1903(2) and 21 September 1903.(3)

If these dues are at present being collected for the State by Commonwealth officers, I think that there is ample ground for terminating the arrangement, on the principle, which has been previously enumerated, that the Commonwealth ought not to assist the States in executing laws or regulations of even doubtful constitutionality; see Attorney-General's opinions of 12 December 1902(4) and 6 April 1903.(5)

[Vol. 5, p. 340]

(1) The Marine Boards Amendment Act 1895(Tas.), Section 4.

(2) Opinion No. 148.

(3) Opinion No. 156.

(4) Opinion No. 118.

(5) Opinion No. 135.