Griffin v Constantine [1954] HCA 80

High Court of Australia Dixon C.J. McTiernan and Kitto JJ. Griffin v Constantine [1954] HCA 80

ORDER Appeal allowed with costs. Order of the Court of Petty Sessions at Perth set aside. Cause remitted to the said Court of Petty Sessions for rehearing with an intimation that s. 16 (b) of the Spirits Act 1906-1952 is a valid law of the Commonwealth.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 17 Dixon C.J.

I have had the advantage of reading the reasons prepared by Kitto J. and agree in them.

McTiernan J.

I have had the advantage of reading the reasons prepared by Kitto J. and agree with them.

Kitto J.

The respondent was the defendant to a summons issued out of the Police Court, Perth, to answer a complaint made by the appellant that he, the respondent, on 29th November 1953 at Perth was guilty of an offence against s. 16 (b) of the Spirits Act 1906-1952 Cth in that he did sell to one Bryant an article of drink containing methylated spirits.

At the hearing a preliminary objection was taken on behalf of the respondent that s. 16 (b) of the Spirits Act is ultra vires the Parliament of the Commonwealth and for that reason invalid. The prosecution supported the validity of the provision by reference to pars. (ii.) and (xxxix.) of s. 51 of the Constitution, ascribing to it the character of a law with respect either to taxation, in particular the imposition of excise duties, or to a matter incidental to the enactment of a law with respect to taxation. The magistrate, however, upheld the preliminary objection. He observed that methylated spirits were exempt from duty under the Excise Act 1901-1952 and he concluded from this that s. 16 (b) should be considered as enacted, not for the protection of the revenue, but in the interests of public health, and was not authorized by any head of Commonwealth legislative power. Accordingly he dismissed the information. From his decision the appeal is brought by virtue of s. 39 (2) (b) of the Judiciary Act 1903-1950 Cth.