Baxter v Ah Way [1909] HCA 30

H. C. or A.

SypNey, May 19, 20.

Griffith ©.J., '0'Connor, Isaacs and Higgins JJ.

HIGH COURT [1909.

{HIGH COURT OF AUSTRALIA.)

BAXTER . . : i 4 4 5 . COMPLAINANT ; AND

AH WAY. 4 DEFENDANT.

Customs Act 1901 (No. 6 of 1901), secs. 52, sub-sec. (g), 53, 56—Prohibited imports — Prohibition by proclamation — Conditional legislation — Powers of Commonwealth Parliament—Delegation of legislative power—The Constitution (63 & 64 Vict. c. 12), sec. 51, sub-secs. i., ii.

See. 52, sub-sec. (y), of the Customs Act 1901, which provides that all goods the importation of which shall be prohibited by proclamation shall be prohibited imports, is not a delegation of legislative power, but conditional legislation, and is within the power conferred on Parliament by sec. 51, sub-secs. i., ii., of the Constitution, The prohibition of importation is a legislative act of the Parliament itself, the effect of sub-sec. (g) being to confer upon the Governor-General in Council the discretion to determine, subject to sec. 56 of the Act, to which class of goods other than those specified in the section, and under what conditions, the prohibition shall apply.

Reg. v. Burah, 3 App. Cas., 889, applied.

'The express prohibition in sec. 53 of the importation of opium, except under certain conditions, does not by implication exclude that article from the operation of sec. 52, sub-sec. (g), and sec. 56.

Held, therefore, that a proclamation by the Governor-General in Council,

prohibiting the importation into the Commonwealth of opium suitable for smoking, was valid.

QUESTION of law submitted by Higgins J. for the opinion of the Full Court in pursuance of Order XXIX. of the Rules of the High Court.

This was originally a prosecution before a Court of summary jurisdiction, under sec. 245 of the Customs Act 1901, for an

8 CLR] OF AUSTRALIA.