Opinion Number. 259

Subject

EXCISE WHETHER COMMONWEALTH HAS POWER TO REGULATE USE OF METHYLATED SPIRITS

Key Legislation

CONSTITUTION, s. 51 (ii) : EXCISE TARIFF 1906 (No. 20 of1906) : SPIRITS ACT 1906

Date
Client
The Secretary to the Prime Minister

Clause 15 of the Spirits Bill proposes to enact that:

A person shall not-

  1. sell or have in his possession any illicit methylated spirits; or
  2. after the first day of January, One thousand nine hundred and seven, sell or have in his possession any article of food or drink, or any scent essence tincture or medicine, containing any methylated spirits.

It shall be a defence to a prosecution under sub-section (b) of this section if the defendant proves that he did not knowingly sell or have in his possession the goods forming the subject of the prosecution.

Penalty: One hundred pounds.(1)

In the debate in the House of Representatives on this clause (see Hansard, pp. 3465-8) reference was made to a recent decision of the Supreme Court of South Australia in the case of Robinson v. Hall(2) reported in the S.A. Register of 11 June 1906, and the question was asked whether the Commonwealth under the Constitution had power to enforce the clause. The Prime Minister in the debate said:

It is the opinion of the Law Department that we have the power to enforce the clause, or it would not be in the Bill. However, as the question has been raised again, and as it has the weight of the opinion of the honourable and learned member for Angas behind it, I shall ask the Attorney-General to make further inquiry into the matter.

The case of Robinson v. Hall was a prosecution under State law and the decision is one that affects State law and administration only (see opinion of Attorney-General of 17 July 1906(3)).

Under the Excise Tariff(4) now before Parliament it is proposed to make methylated spirits, subject to regulations, free of duty. The object of the Spirits Bill is (inter alia) to provide for the regulation of methylated spirits and the protection of the Commonwealth against its use for improper purposes.

Protection against the improper use of methylated spirits is practically equivalent to protection against smuggling or illicit distillation. Such protection is necessary in the interests of the revenue.

Recommended to advise that the Commonwealth has power to enforce the clause.

[Vol. 5, p. 348]

(1) Enacted as section 16 of the Spirits act 1906.

(2) [1906] S.A.L.R. 16.

(3) Not published [Vol.5, p.317].

(4) Enacted as the Excise Tariff 1906 (No. 20 of 1906).

(5) This Opinion was endorsed 'Approved' by Mr. Isaacs, Attorney-General.