TASMANIA v stitution to

TASMANIA v stitution to - [1904] HCA 11 - HCA 1904 case summary — Zoe

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State took the place of the individual and should get the benefit H- ©. or 4. of the drawback. oe [O'Connor, J - The drawback benefits the individual who - grate or obtains it, not the State which allows it. Tasmania would get T*s™s™ _ the benefit of the Tasmanian duty on goods sent there after the 'Tas Cominn) drawback had been allowed in Victoria, but Tasmania would get Avusrraxta no direct benefit from the drawback.] aon See There is no break in the policy of drawbacks, and there should _ be none in crediting duties to the States of consumption. _ [Grirrira, C.J. - That would be all very well if the Constitu- tion had said so.] If the Constitution has said the contrary, it is departure from previous policy or a casus omissus. On constitutional principles _ there should be no injustice done. The Constitution is only a declaration of principles for guidance. The draft bill of 1891, clauses 4 and 9, gave all that Tasmania claims here. So does clause 91 (3) of the draft bill of 1897. (Barton, J - That was abandoned before being put into form by the draftsmen.] Tt was the deliberate judgment of the Convention as to that for which the plaintiff now contends. [Grirrita, C.J. - We have to decide what the legislature riésns by what it has now said. There has been a change in the language, and therefore the argument from the draft bill of 1891 gainst the plaintiffs. These tentative drafts do not affect the construction of the final form.] As to the principles applicable to the interpretation of a Con- 'stitution, see Black's Constitutional Law, 2nd ed., p. 67. The "construction of see. 93 contended for is a possible one, and, if more one construction is possible, Tasmania is entitled to that ich is more liberal and will carry out the intention of the framers of the Constitution. In see. 93 the words " imported " nd "produced" are adjectival and correlative. The word "chargeable" is equivalent to "paid" or "which is directed by law to be charged." [They also referred to Caledonian Railway Co. v. North British Railway Co., (1881) 6 App. Cas, 114; Hill v. East and West India Dock Co. (1884) 9 App. Cas. 448; Countess of

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st said, with the imposition of uniform duties of customs. Sec. 93, which must be read with sec. 89, covers the whole period, from the establishment of the Commonwealth to the end of the five ars after the imposition of uniform duties, sec. 92 being a porary provision for part of the latter period. Sec. 93 begins : During the first five years after the imposition of uniform duties customs, and thereafter until the Parliament otherwise pro- des" - which is equivalent to saying, "This shall be the law for the next period of five years." The section then continues: [His Honor read the rest of the section and continued]. Reading the econd sub-section first, that provision amounts to this: - During he next five years the same rule is to be observed as before, that to say, every State is to be credited with the customs and cise duties collected within its borders, with one exception, the exception being that contained in the first sub-section. It is ontended for the plaintiff State that that exception or proviso is etrospective, and applies to goods imported into a State before the period when this law was to come into operation. It is a general rule of construction that primd facie a law is read as speaking of what is to happen after it comes into operation, and that rule is just as applicable to a Constitution which makes provision for 'several successive periods of time as toa single law which comes into operation on its passing or on some prescribed day. Mr. lynn contends that the term "the duties of customs chargeable on goods imported into a State" includes the duties of customs collected before the period during which this provision operates, md which had properly been paid to or received by the treasury of the State of Victoria. He says, and truly, that it can be pre- ited of the goods in question which were received into Victoria luring the first period that they are "goods imported into a State," ind that it can also be predicated of the same goods that they uterwards passed into another State for consumption. Therefore, e says, both those terms can be predicated of the goods in stion, and the duties paid on them fall within the section. It is necessary, first, to see whether that is the natural construction 'the section, and, if not, whether it is a possible construction and ne Which, for other cogent reasons, we ought to adopt. Primd ie the section is prospective and speaks of something which is

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conceded that if there is fair reason to base this contention on sec. 93 taken singly, there is an ambiguity, provided that section can justly be construed apart from the context. But I cannot see that either condition is fulfilled. Nor, as I shall presently endeayour to show, can the supposed ambiguity be established without wresting from their purpose rules of interpretation which exist for the purpose of solving ambiguities, and not of creating them. But it is further contended that unless this construction be adopted, there will be a manifest absurdity or injustice. This argument is urged in order to control the other- wise certain operation of sec. 89, which itself is admittedly clear. On that topie Wiles, J., in Christopherson v. Lotinga, (1864) 33 LJ.C.P., 23, refers to what is known as Lord Wensleydale's golden rule laid down in Grey v. Pearson. He says: - " The general rule is stated by Lord Wensleydale in these terms, viz, 'to adhere to the ordinary meaning of the words used, and to their grammatical construction, unless that is at variance with the intention of the legislature to be collected from the Statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.' I certainly subscribe to every word of the rule except the word 'absurdity, unless that be considered as used there in the same sense as ' repugnance ' - that is to say, something which would be so absurd with reference to the other words of the Statute as to amount toa repugnance." In my mind closely connected with the reason of that passage, is one I mentioned during the argument. 11 is in the judgment of Jervis, CJ., in Abley v. Dale, (1851) 20 LJ., C.P., 235: - * We assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning." Taking - these two passages together it seems clear that even if what Willes, J., has laid down as to that which constitutes an "absurdity " were not followed in this ease, and there is much reason why it should be, nevertheless what is an absurdity in an Act of Parliament is not a mere matter of opinion. It would be an enormity to hold that a Judge who thinks that a certain

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