LIQUOR RETENTION OF STATE POWER TO LICENSE SALE AFTER IMPOSITION OF UNIFORM DUTIES OF CUSTOMS : WHETHER LICENSING ACT IMPOSES EXCISE
CONSTITUTION, s. 90 : BEER EXCISE ACT 1901, s. 10: THE WINES, BEER, AND SPIRIT SALE ACT 1880 (W.A.).ss. 9, 39
Section 90 of the Constitution provides that on the imposition of uniform duties of customs (1) the power of the Federal Parliament to impose duties of excise shall become exclusive; and (2) all laws of the several States imposing duties of excise shall cease to have effect.
Section 10 of the Beer Excise Act 1901 provides that no person who is licensed to retail wine beer or spirits in quantities of less than two gallons shall be licensed under that Act (as a brewer), and if any brewer is licensed to retail wine beer or spirits in such quantities his license under that Act shall thereupon cease.
Section 9 of The Wines, Beer, and Spirit Sale Act 1880 (44 Vic. No. 9) (W.A.) provides that a 'Gallon License' shall authorise the licensee to sell any liquor in quantities not less than one gallon. Section 39 of that Act imposes a penalty on all persons selling liquor without a license. Brewers in Western Australia have sold under the 'Gallon License' and apparently no other provision is made for sales by them.
The Premier of Western Australia is advised that the West Australian Act is an excise duty Act and will therefore cease to have effect upon the imposition of uniform duties of customs, and that thereupon no provision will exist in that State governing the sale of wine beer and spirits; and that the State Parliament under section 90 of the Constitution has no power to legislate on the subject.
I am of opinion that the West Australian Act is not a 'law imposing duties of excise', and that it will not cease to have effect on the imposition of uniform duties. The States retain their power of legislating with respect to licenses for the sale of liquor, and I see nothing in the West Australian Act which is inconsistent with the Beer Excise Act.
It is clear, however, that a person holding a 'Gallon License' under the West Australian Act cannot be licensed or hold a license under the Commonwealth Beer Excise Act.
Apparently no other license is issued which makes provision for the sale of beer by brewers in Western Australia. Of course the West Australian Parliament has power to pass remedial legislation.
[Vol. 1, p. 169]