6.
2
I am to ask that you will take this letter and its enclosures into consideration and, in view of the urgency of the question, be good enough to report, at as early a date as possible :—
7.
(1) Whether in the event of an Australian State Act such as Queensland Act No. 2 of 1914 being ultra rires by reason of Section 92 of the Constitu- tion of the Commonwealth the validation of such an Act involves the alteration of the Constitution, and recourse is, therefore, necessary to the procedure laid down in Section 128 of the Constitution :
(2) If the answer to the preceding question is in the negative, whether such
an Act can be validated by an ordinary validating Act passed by
(a) the Imperial Parliament, or
(b) the Commonwealth Parliament:
(3) If such a validating Act cannot be passed, or, if it can be passed either by the Imperial or by the Commonwealth Parliament, but such a course is for political reasons considered undesirable, whether a Commonwealth Act can be passed of the nature described at (b) supra (in paragraph 5 of this letter) merely validating past action taken under the Queens- land Act and providing for future action as a Federal matter, or whether such an Act would itself be ultra rires by reason of Section 92 of the Constitution:
(4) Failing such an Act, what other action can and should be taken to put the Queensland meat supply for Imperial uses on a sound legal basis.
As already explained in paragraph 4 of this letter, your report upon the above questions is desired in view of the possibility that the Queensland Act may be held to be ultra rires, but I am to request you to be good enough to report also whether in your opinion that Act is ultra res by reason of Section 92 of the Constitution of the Commonwealth.
HENRY LAMBERT,
3
In our opinion, when due weight is given to the language of Section 92 and of the proviso thereto, and to the important circumstance that all the relevant sections hereinbefore referred to are concerned with duties, the conclusion follows that the words "absolutely free" in Section 92 mean free from duties of a comparable nature and have no reference to restrictions of a different quality. In other words, the provisions of Section 92 which appear in a part of the Act headed “Finance and Trade," are fiscal in their character and must not be extended to a non-fiscal subject- matter. If Section 92 had the meaning contended for by those who impeach the constitutionality of the Meat Supply for Imperial Uses Act of 1914, it is by no means clear that a State Legislature could even make regulations, e.g., as to the import or export of diseased cattle.
For these and other reasons, we are of opinion that the statute under considera- tion is constitutional.
We are, however, asked to answer questions on the hypothesis that our view is ill-founded. We add short answers to the questions submitted to us :--
(1) Yes. On the assumption we are invited to make recourse would be neces- sary to the procedure laid down in Section 128 of the Constitution Act. (2) Does not arise.
(3) Does not arise.
(4) The Imperial Parliament is competent to deal by legislation with any of the difficulties indicated above, and whether all or any of the views hereinbefore expressed are well-founded. The political objections to Luperial intervention are apparent. How far they would be removed in a case where the Imperial Parliament was asked to legislate by the Australian Government is for that Government to consider.
But if our views as stated above are sound the contingency is unlikely to arise.
I am, &c.,
for the Under-Secretary of State.
Law Officers' Department.
7th February, 1916.
FREDERICK SMITH. GFO. CAVE.
ENCLOSURES.
(1) Queensland Act, No. 2 of 1914.
(2) Commonwealth Constitution Act.
(3) Letter from Agent-General for Queensland, 12th January, 1916.
(4) New South Wales Acts, Nos. 27 of 1914 and 28 of 1915.
(5) Judgment in Wheat Case.
6146
REPORT.
The other points submitted to us do not arise unless "The Meat Supply for Imperial Uses Act, 1914," is ultra rires the Queensland Legislature under the Com- monwealth of Australia Constitution Act. We therefore consider this point first, and, as we have reached a clear conclusion upon it, we do not think it necessary to make an elaborate examination of the remaining points.
We are of opinion that the Meat Supply for Imperial Uses Act, 1914, is not ultra cires, either by reason of the provisions of Section 92 of the Constitution or at all. We agree, upon this point, with the reasoning of the High Court of Aus- tralia in the New South Wales Wheat Case, though we are of opinion that the decision of the Court might also be supported upon other grounds. It would, for instance, seem to be clear that Section 92 of the Constitution Act must be construed more narrowly than the learned judges of the High Court apparently believed. Section 92 cannot be understood without reference to Section 51 (i), (ii), and (iii), and to Sections 88 to 95, and to Section 99.
•
1
PUBLIC RECORD OFFICE
Reference -
TRITT C.O.885
↓ | | | | | | | | | | || | ||
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO