PROHIBITED IMPORTS INTERSTATE TRANSFER : POLICE REGULATION AFTER ESTABLISHMENT OF FREEDOM OF INTERSTATE TRADE : INDECENT OR OBSCENE WORKS OR ARTICLES
CUSTOMS ACT 1901, ss. 50, 52, 55 : CUSTOMS ACT 1890 (VIC.) : CRIMES ACT 1900 (VIC.),s. 8
The Minister for Trade and Customs asks to be advised as to the following questions:
- What is the position and duty of the Department in relation to the Crimes Act 1900 (Victorian)?
- Is the 'Health Book' (with the papers) an indecent or obscene work or article within the meaning of section 52 of the Customs Act 1901?
My opinion on these questions is as follows:
- The Victorian Crimes Act 1900 (No. 1643) imposes penalties for printing, publishing and distributing, sending by post, etc. any picture or advertisement, or printed matter in the nature of an advertisement, of an 'indecent or obscene nature' as therein defined.
- The 'Health Book' is printed in Sydney, and apparently published by the Australian Viavi Company, in Sydney. A package of these books forwarded by rail from Sydney has been detained in Melbourne; and it is apparently in connection with this matter that Mr Kingston's(1) questions are asked.
Section 8 provides that any such picture, advertisement, or matter 'shall not be imported or brought into Victoria and shall be included among goods prohibited to be imported as if they were specified in section forty-nine of the Customs Act 1890'.
Section 50 of the Customs Act 1901 provides that'No prohibited imports shall be imported', and imposes a penalty.
Section 52 of the Customs Act 1901 includes among prohibited imports'indecent or obscene works or articles'.
Section 55 of the Customs Act 1901 provides that 'All goods lawfully prohibited to be imported into any State shall as regards that State be prohibited imports for the purposes of this Act'.
Prohibited imports within the meaning of the Victorian Act are therefore prohibited imports under section 55 of the Customs Act 1901, and may not be imported into Victoria from beyond the Commonwealth.
The prohibition of sections 50 and 55 of the Customs Act 1901 does not apply to interstate transfer-e.g. the bringing of articles into Victoria from New South Wales. But section 8 of the Victorian Act, without the assistance of the Customs Act, is still applicable to such interstate transfer, and will remain in force as a police regulation even after the establishment by law of free trade, commerce and intercourse among the States. The transportation of indecent publications and articles may be forbidden by either Federal or State authority: Prentice & Egan, Commerce Clause of the Federal Constitution, pp. 56-57; Quick & Garran, p. 518. The Department, by virtue of its control over interstate commerce, should administer the provisions of the Victorian Act as far as they relate to interstate transfer.
The 'Health Book' is printed matter, in the nature of an advertisement, of an indecent or obscene nature within the meaning of the Victorian Act; and is therefore prohibited by Victorian law to be brought into Victoria.
Whether it would be an indecent or obscene work within the meaning of section 52 of the Customs Act 1901-which does not define 'indecent or obscene'-is open to doubt; but the question does not arise, as the book is not imported.
[Vol. 2, p. 19]
(1)Charles Cameron Kingston, Minister for Trade and Customs.
* See also Opinion No. 186.