Opinion Number. 314



Key Legislation


The Minister for Trade and Customs

It appears that the Cairns Harbour Board has sent a circular to several of the oversea shipping companies, from which the following is an extract:

My Board are endeavouring to obtain from the Government a remission on all port charges for oversea vessels. I am desired to point out that, as a special inducement for foreign vessels to berth at Cairns, my Board have made the berthage charges absolutely free, whilst coastal vessels pay full rates.

The Minister for Trade and Customs asks for advice whether the proposed differential wharfage rates are contrary to the Constitution.

The only provision of the Constitution which appears to be at all in point is section 92, which provides that:

. . . trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

Advice has previously been given that, where wharfage rates are imposed by a State authority in respect of produce from other States, and not in respect of the domestic produce of the State, there is a contravention of section 92 of the Constitution: see Mr Attorney-General Deakin's opinion 17 August 1903.(1)sup> Also that, where tonnage dues are charged in the case of interstate vessels, for harbour services, and the same services are performed without charge for vessels trading within the State, there is a breach of section 92 of the Constitution: see opinion of Mr Attorney-General Deakin 21 September 1903.(2)

In those cases th discrimination was obviously for the purpose of advantaging intrastate trade in the competition with interstate trade, the object and effect being to relieve intrastate trade of a burden to which interstate trade was subject, and so to impose a burden on interstate trade.

In this case the object is to encourage oversea trade at the port; and from passages in the circular above mentioned it appears that the chief aim is to enable Cairns to compete with Townsville as a port of call for oversea ships.

There is apparently no discrimination between intrastate trade and interstate trade; and there is nothing in the papers to show that interstate trade will be, or is intended to be, affected.

On present information, therefore, I see no reason to advise that the proposed discrimination is contrary to the Constitution.

[Vol. 6, p. 415]

(1) Opinion No. 148.

(2) Opinion No. 156.

(3) Senator, Vice-President of the Executive Council.