Challengers to registration requirements under s 92 must demonstrate that the particular challenger would have been unable to obtain registration, not merely that hypothetical persons might be unable to do so; and where a board's satisfaction turns on objective facts, the requirement will generally be treated as regulatory.
Later decisions that cite Buck v Bavone
Decisions cited by Buck v Bavone
BUCK v. BAVONE [1976] HCA 24; (1976) 135 CLR 110
Constitutional Law (Cth)
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4), Jacobs(5) and Murphy(6) JJ.
CATCHWORDS
Constitutional Law (Cth) - Freedom of interstate trade - Prohibition of sale of potatoes by unregistered grower - Whether prohibition valid against unregistered grower who sells potatoes interstate - Whether registration provisions regulatory - Provision for exaction of contributions from registered growers - Whether burden on interstate trade - Whether valid - Effect upon validity of requirements for registration - The Constitution (63 & 64 Vict. c. 12) s. 92 - Potato Marketing Act, 1948-1973 (S.A.), ss. 12, 18 - Acts Interpretation Act, 1915 (S.A.), as amended, s. 22a.
HEARING
Adelaide, 1975, September 22;DECISION
1976, May 14.
2. The appellant, an inspector employed by the South Australian Potato Board
("the Board") which is set up by s. 4 of the Act, complained
that such selling
by the respondent was contrary to s. 18 of the Act. Sub-section (1) of that
section provides that "a person shall
not grow potatoes for sale, or sell
potatoes grown by him unless he is registered by the board as a grower". (at
p113)
3. The learned magistrate who heard the complaint held that there was no case
for the respondent to answer since s. 18, properly
construed, did not prohibit
the interstate sale of potatoes by the respondent to a New South Wales buyer,
though the respondent was
not a registered grower under the Act. The basis of
the construction placed upon s. 18 of the Act by the magistrate was that a
prohibition
of the grower unless registered under the Act would infringe s. 92
of the Australian Constitution. Thus, s. 18 was construed to avoid invalidity
and held to have no application to the transaction in question. (at p113)
4. To be registered as a grower, a person must apply on a prescribed form,
furnishing the information which it seeks and satisfy
the Board that in the
period for which registration is required he is growing or will grow potatoes
for sale, either on land owned
by or occupied by him, or under a share-farming
agreement. A certificate when granted remains in operation for the period it
specifies,
not being more than eighteen months (s. 18 (2) , (3) and (4) ).
(at p113)
5. The form of application to be registered as a grower is not determined by
the Act but is left to be prescribed by regulations.
Thus the Act does not
itself determine the information the form may require. (at p113)
6. The power to make regulations is contained in s. 24. They may be made on
the recommendation of the Board and may prescribe matters permitted by the Act
to be prescribed. Pursuant to
this power, regulations were made in March 1949
and amended from time to time and ultimately, so far as is presently relevant,
in
August 1964. An application under s. 18 for registration as a grower is
required by the regulations to be in writing in the form in the 1st Schedule
thereto (reg. 2(c)).
This form calls for, amongst other things, a description
of the land on which "potatoes are or will be planted", a statement as
to the
period for which registration is required, and it contains the following
undertaking to be signed by the applicant:
"I undertake that if granted a certificate of registration
as a potato grower, I will, during the period for which
registration is required, grow potatoes for sale on the above
described land and will plant the above described acreages
and varieties." (at p114)
7. A person dissatisfied with a decision of the Board may request the
Minister to reverse the decision. The Minister may give that
person an
opportunity to submit information and argument and may give the Board a
direction relating to the request. The Minister's
decision is binding on the
Board (s. 23). (at p114)
8. Section 20 gives the Board authority, amongst other things, by order, to
fix the quantity of potatoes "a grower may sell or deliver at any time
or
place specified in the order and prohibit the sale or delivery of potatoes in
contravention" of the order (s. 20 (1) (a)). The
other provisions of s. 20
give to the Board complete control of the marketing of potatoes. (at p114)
9. The first matter to be observed is that in terms the Act embraces sales
and deliveries in the course of interstate trade. To
use the expression used
by the Privy Council about the statutory provisions the subject of decision in
Peanut Board v. Rockhampton
Harbour Board (1933) 48 CLR 266 , the Board is
given power to enforce a "compulsory marketing scheme, entirely restrictive
of
any
freedom of action on the part of
the producers". It involves "a
compulsory regulation and control of all trade, domestic,
inter-State
and
foreign", see James v.
The Commonwealth [1936] HCA 32; (1936) 55 CLR 1, at p 52; (1936) AC
578, at p 623 . It needs
no reference to authority
now to establish the
proposition that a State
may not so control interstate trade. Quite apart
from what
the Act purports to empower
the Board to do, the Act itself purports
to prohibit the sale, including the interstate sale, of potatoes
except by
persons chosen
by or on behalf of the State by means of
a system of
registration of growers. Only a registered grower
may sell. Section 18(1)
clearly embraces an interstate sale within the terms of its prohibition. (at
p114)
10. Further, a consequence of being registered as a grower is that a person
becomes subject to the power of the Board to require
him to pay to the Board
contributions towards the costs of the administration of the Act and of
carrying out the powers and duties
of the Board (see s. 12). Included in the
powers of the Board is a power to buy and sell, amongst other things, potatoes
(s. 16(d)). Thus recoupment of trading losses by means of the levy would seem
to be within the scope of s. 12. (at p115)
11. There is no limit to the amount of the levy, nor is there any
prescription of the manner in which its amount is to be calculated.
There is
no requirement of the levy being ratable to any fact or circumstance: nor is
it necessarily to be non-discriminatory as
between growers. The amount of the
levy when fixed and notified by the Board becomes a debt recoverable by the
Board. (at p115)
12. It was submitted on behalf of the appellant that registration as a grower
is really as of right, so that the State through the
Act and regulations in so
far as registration is concerned, is merely recording those who are growing or
will grow potatoes in order
to amplify the Board's statistical information as
an aid to marketing control. It is claimed that there is a sufficient
specification
in s. 18 of what is required for registration as a grower to
fulfill the requirements mentioned in Hughes and Vale Pty. Ltd. v. New South
Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 . But, if registration places the registered
grower at the risk of a financial impost,
the fact,
if it be the
fact that
registration is as of right, may not save the relevant sections of the Act
from invalidity unless
restrained
by construction
to exclude interstate trade
from its operation. (at p115)
13. It is clear, in my opinion, that the effect of ss. 12 and 18 is that,
unless the grower of potatoes for sales has become registered, he may not sell
his potatoes at all. If he registers as
a grower, and thus enables himself so
far as s. 18 is concerned to sell his potatoes, he may become liable to pay
such sum as the Board determines: that is to say, the grower is told
"You may
only sell if you submit yourself to the possibility of being liable to the
Board for an unspecified amount of money". (at
p115)
14. It was submitted that, by reason of s. 22a of the Acts Interpretation Act
1915 (S.A.), as amended, s. 12 should be construed so as not to authorize a
levy upon a grower in respect of his interstate trade. But,
in my opinion, by
no process
of construction could the language of s. 12 be so confined. The
levy is not in respect of any transaction
but is in respect of a person
registered as a grower. Further, the
levy may be required to be paid before
the grower has decided
whether or not he will sell interstate: and he may be
both a seller
intrastate and interstate. (at p116)
15. It was also submitted that the operation of ss. 12 and 18 could be
severed so that their provisions did not cumulate. It was
then said that, if
s. 12 were read as inseverably authorizing a levy on interstate trade, it
would as a whole be void, leaving s.
18 standing. (at p116)
16. But this submission misconceives the relevant operation of s. 92. It is
the prohibition on sale without being registered which
brings s. 92 into
consideration in this case. If registration is not as of right, the
prohibition on sale will itself offend s.
92. But a consequence of
registration is a compulsory levy. This will afford a separate reason for
concluding that the constitutional
provision has been breached, even if
registration is as of right. These are the two bases on which ss. 12 and 18
may deny the freedom
of interstate trade protected by s. 92: first, unless
registration as a grower is of right, s. 18 itself will offend. Secondly,
if
the grower has a right to be registered, the combination of the prohibition on
sale without registration
and the subjection by
s. 12 of the registrant to the
risk of a levy will also offend. If it be right, as I think it is, to read
the Act as forbidding
an interstate
sale by a grower who is not registered but
who, if registered, will be exposed to the possibility of a levy of uncertain
and, perhaps,
unlimited amount, s. 18 of the Act, in my opinion, infringes s.
92. A State cannot make the liability to such a levy
a condition of its
permission to engage
in interstate trade. That, in my opinion, is precisely
what the Act, properly understood,
effects to do. For this reason, I am
of
opinion that s. 18 must be construed so as to be inapplicable to the
interstate selling
of potatoes. A grower may sell his potatoes by an
interstate
sale without being registered under the Act. (at p116)
17. There is another ground on which I would reach the same conclusion. A
grower has no right to a licence until he satisfies the
Board that he is
growing or will grow potatoes, presumably of stated varieties and at stated
times on specific areas of land. That
satisfaction of the Board is
subjective. The grower has no right to the Board's satisfaction. Further,
the fact about which the
Board is to be satisfied may, in some circumstances,
be irrelevant to the sale of the potatoes the grower wishes to sell. The
Board's
satisfaction is as to a period, which is not necessarily the period in
which the potatoes to be sold have been grown. Thus, a grower
with a stock on
hand may not sell those potatoes unless he is registered in respect of a
period in which they were not, nor would
be, grown. For example, a grower
with potatoes on hand after the expiry date of an earlier registration could
not sell them until
he was registered again. In such a case, the Act and
regulations (including the scheduled form) provide that the grower, in order
to be able to sell his stock of potatoes, must undertake to grow further
potatoes as described in the form of application for registration.
(at p117)
18. Further, the satisfaction of the Board as to whether the applicant is
growing or will grow potatoes for sale depends, at least
in part, upon the
intention of the grower. This involves questions of credit: as I have said,
the applicant has no certainty that
he will be believed. It is quite
inappropriate, in my opinion, to describe the applicant in such a case as
entitled to be registered.
It can only be said that he must be registered if
he can convince a State board of what he is relevantly doing or will do. (at
p117)
19. In my opinion, the provisions of the Act do not satisfy the requirement
that the registration should be obtainable as of right
or subject only to the
performance of ascertained and defined conditions which do not in themselves
constitute a violation of the
guaranteed freedom. (at p117)
20. In my opinion, the Act does endeavour, on the one hand, inadmissibly to
subject interstate trade to the burden of a financial
levy: and, on the other
hand, in substance, to select who shall be permitted to engage in interstate
trade according to the discretion
of the Board or of the Minister. (at p117)
21. In either case s. 92 is infringed. The magistrate's decision to dismiss
the complaint was correct. This appeal should be dismissed.
(at p117)
GIBBS J. The respondent was charged that, being a person who was not
registered as a grower of potatoes, he sold a quantity of
potatoes grown by
him contrary to s. 18 (1) of the Potato Marketing Act, 1948-1973 (S.A.) ("the
Act"). It was proved that the respondent,
who was not registered as a grower,
sold some potatoes, which he had grown at Salisbury Downs in South Australia,
to a buyer at Broken
Hill in New South Wales and agreed to deliver them in
Broken Hill. The magistrate who heard the complaint held that s. 18 (1) must
be construed in such a way that it would not infringe s. 92 of the
Constitution and that so construed it did not extend to interstate trade.
Since it was not disputed that the sale the subject of the charge was
an act
of interstate trade the magistrate accordingly dismissed the complaint. (at
p117)
2. The provisions of s. 18 (1) of the Act can only validly apply to an
interstate sale if they are "regulatory" within the principles laid down in
The Commonwealth
v. Bank of New South Wales [1949] HCA 47; (1949) 79 CLR 497; (1950) AC 235
and later authorities. The sub-section prohibits all
sales except by
registered growers, and such
a provision could not validly apply to interstate
trade unless it was sufficiently certain
that any
grower who wished to make
interstate
sales and who sought registration could obtain it. It was
submitted on behalf of the
respondent
that the provisions of s. 18 (2) of the
Act did not bring about that result, first, because the entitlement to
registration depends on the Board being satisfied
of the matters mentioned in
s. 18 (2) (b) rather than on the existence in fact of such matters and,
secondly, because that sub-section does not entitle a person to
registration
unless in the period for which registration is required he is growing or
intends to grow potatoes for sale and there
may be cases in which a person who
has grown potatoes and wishes to sell them interstate cannot obtain
registration. It was further
submitted that the requirement of registration is
itself an impermissible burden on interstate trade and that the fact of
registration
exposes the grower to a levy under s. 12 of the Act which could
not be exacted consistently with s. 92. (at p118)
3. The first question that arises is whether s. 18 (2) of the Act gives the
Board an arbitrary or very wide discretion to decide whether a grower who
applies for registration should
be granted it. If so, the authority of such
cases as Hughes and Vale Pty. Ltd. v. New South Wales (No. 2) [1955] HCA 28; (1955)
93 CLR
127 establishes
that the provision will be invalid. It is not uncommon for
statutes to provide that a board or other
authority
shall or may take
certain
action if it is satisfied of the existence of certain matters specified in the
statute. Whether
the decision
of the authority
under such a statute can be
effectively reviewed by the courts will often largely depend on the nature
of
the matters
of which the
authority is required to be satisfied. In all such
cases the authority must act in good faith; it cannot
act merely
arbitrarily
or capriciously. Moreover, a person affected will obtain relief from the
courts if he can show that the authority
has
misdirected
itself in law or that
it has failed to consider matters that it was required to consider or has
taken irrelevant
matters
into account.
Even if none of these things can be
established, the courts will interfere if the decision reached by the
authority
appears so unreasonable
that no reasonable authority could properly
have arrived at it. However, where the matter of which
the authority
is
required to
be satisfied is a matter of opinion or policy or taste it may be
very difficult to show that it has
erred in one of
these ways, or
that its
decision could not reasonably have been reached. In such cases the authority
will be left
with a very wide
discretion which
cannot be effectively reviewed
by the courts. Hughes and Vale Pty. Ltd. v. New South Wales (No.
2) itself
was a
case of that kind.
Where the authority is required to be satisfied of
the existence of particular matters of objective
fact, the
position may be
very
different. It may then be possible to show clearly not only that the
material facts existed but that
an authority
acting in accordance
with its
duty could have reached no other conclusion than that they existed. Under s.
18 (2) of the Act the matters of which the Board must be satisfied before an
applicant will be entitled to registration are clearly
defined, and they do
not permit the Board to exercise any judgment as to the fitness of the
applicant or to apply its own notions
of policy in reaching its decision. The
Board has to be satisfied that "in the period for which registration is
required he" (the
applicant) "is growing or will grow potatoes for sale,
either on land owned or occupied by him, or under a share-farming agreement".
It is impossible to suppose that the Board acting in good faith could fail to
be satisfied that a person was growing potatoes if
that were the fact. No
doubt the questions whether the applicant will grow potatoes, and whether they
are being grown or will be
grown for sale, make it necessary for the Board to
decide whether it accepts an applicant's statements as to his intent, but
having
regard to the nature of the issue the possibility that the Board acting
honestly might wrongly fail to be satisfied of those matters
seems to me
theoretical rather than practical. In the nature of things an erroneous
decision by the Board on such a question could
be readily reviewed by the
courts. The requirement that a grower who effects an interstate sale shall be
registered does not burden
the grower's interstate trade, because the grower
will be entitled to be registered, and for reasons which I shall give
registration
does not entail any burdensome consequences. The possibility
that the Board may wrongly refuse to grant registration, thus putting
the
grower to the trouble and expense of resorting to the courts, does not mean
that s. 18 would be invalid if it applied to interstate trade: Wilcox Mofflin
Ltd. v. New South Wales [1952] HCA 17; (1952) 85 CLR 488, at
p 522 ; Kerr v.
Pelly [1957] HCA 42; (1957) 97
CLR 310, at p 318 . (at p119)
4. However, as I have already indicated, a person will not be entitled to
registration unless he satisfies the Board that in the
period for which
registration is required he is growing or will grow potatoes. According to
the submission of the respondent the
section defines too narrowly the class of
persons entitled to registration and does not allow the registration of every
grower who
may wish to sell his potatoes interstate. Clearly enough a person
who had grown potatoes for a purpose other than sale - for example,
for his
own consumption or for use as seed potatoes on his own land - and then, after
he had taken the whole crop off the land, had
changed his mind and wished to
sell the potatoes interstate, could not obtain registration if he did not
intend to grow potatoes
for sale in the future. He would not be a person who
"is growing or will grow potatoes for sale". Also a person who had grown
potatoes
for sale and who had been registered, but whose registration had
expired after he had harvested his entire crop but before he had
sold it, and
who did not intend again to grow potatoes for sale, could not obtain further
registration, and the section if valid
would render a sale by him unlawful.
Perhaps a case could also arise in which the land on which potatoes were grown
was neither owned
nor occupied by the grower, and there was no share-farming
agreement. These however are exceptional cases, unlikely to arise in
the
normal course of trading. To establish a breach of s. 92 it is not enough to
suggest the possibility of theoretical infringements of freedom that are
remote from reality: cf. Hughes and
Vale Pty. Ltd. v. New South Wales (No. 2)
(1955) 93 CLR, at p 160 . Moreover, it is unnecessary to consider hypothetical
cases that
may never arise. It has not been shown that the respondent would
not have been entitled to registration if he had sought it before
he sold the
potatoes to the buyer in Broken Hill. All that appears in the evidence is that
the respondent had been growing potatoes
only for the one year during which
the alleged offence occurred; there is not the least suggestion that he was
growing them otherwise
than for sale and it does not appear whether or not he
had harvested his whole crop. He has not shown that in the circumstances
he
was not entitled to registration as of right; he has therefore not shown that
his freedom to sell interstate has been affected.
(at p120)
5. The form on which an application for registration must be made is
prescribed by regulations made under the Act. The applicant
for registration
is required to supply the following particulars:
(1) Description of the land on which the potatoes are or are to be
planted;
(2) The name and address of the owner or occupier of the land;the partners;
(3) If potatoes are grown in partnership, the full names and addresses of
6. The respondent's final contention is that upon registration a grower is
liable to pay a levy which itself would constitute an
impermissible burden if
applied to interstate trade. Section 12 of the Act provides, inter alia, as
follows:
"(1) The board may, by notice in the Gazette from timeNo limit is placed by the statute on the amount of levy and since the Board is empowered to buy and sell potatoes s. 16(d)) the power to levy might be used to help make up trading losses incurred by the Board in dealing in potatoes other than those of the grower levied. The levy is not simply a tax on production of potatoes, justifiable within the principle of such cases as Damjanovic & Son Pty. Ltd. v. The Commonwealth (1968) [1968] HCA 42; 117 CLR 390 . Nor is it a fee paid towards the cost of registration, or as recompense for services or facilities provided by the Board, within the principles discussed in Freightlines and Construction Holdings Ltd. v. New South Wales [1967] UKPCHCA 1; (1967) 116 CLR 1; (1968) AC 625 . It was not contested that a grower could not be compelled to pay the levy as the price of engaging in interstate trade or as a tax on that trade. If s. 12 were given its full effect, so that it applied to growers making interstate sales, its provisions could not stand consistently with s. 92 of the Constitution. However, the Act is to be construed so as not to exceed the legislative power of the State of South Australia, and is to be treated as valid to the extent to which it does not exceed that power: s. 22a of the Acts Interpretation Act, 1915 (S.A.), as amended. That section reverses the presumption that the Act is to operate as a whole, and reveals the legislative intention that any parts of the enactment found constitutionally unobjectionable should be carried into effect independently of those which fail: Bank of New South Wales v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at p 371 . It is unnecessary to consider whether s. 12 is wholly invalid, and I express no opinion on that question. However, I can find no indication of any intention that ss. 12 and 18 should be interdependent, or that the rules of interpretation contained in s. 22a should not apply to the Act. If s. 12 is pro tanto invalid, it does not apply to a grower engaged in interstate trade. If it is wholly invalid, its invalidity does not infect s. 18. The two sections are distinct and severable. Liability to pay the levy is not a condition of registration. There is no other reason why s. 18 cannot be given effect independently of s. 12. Section 12 purports to enact that a consequence of registration may be liability to pay the levy; that consequence cannot validly be made to follow registration of an interstate trader; however, the intention of the legislature is that if s. 18 is valid in itself it should be given effect notwithstanding that the provisions of s. 12 fail wholly or in part; therefore, since s. 18 is not otherwise objectionable, it takes effect although registration under it does not expose an interstate trader to the consequences provided by s. 12. The result is that a grower who sells his crop interstate is obliged to register, but does not by reason of his registration become liable to the levy. (at p123)
to time require all or any of the persons who are registered
or licensed under this Act to pay to the board contributions
towards the costs of the administration of this Act and towards
carrying out the powers and duties of the board under
this Act.
(2) The notice shall specify the persons or classes of
persons who are required to pay contributions, the amount
of the contributions or the manner in which they are computed
and the time on or before which they must be paid."
7. For these reasons the provisions of s. 18 of the Act were merely
regulatory, and validly applicable to sales made in the course
of interstate
trade. The magistrate was wrong
in dismissing the complaint. I would allow
the appeal. (at p123)
STEPHEN J. The respondent, a South Australian potato grower, faced a charge
that, not being registered as a grower of potatoes,
he had, contrary to s.
18(1) of the Potato Marketing Act, 1948-1973 (S.A.), sold potatoes grown by
him. By way of defence he relied
upon s. 92 of the Constitution; the charge
was dismissed. The sale the subject of the charge was one to an interstate
buyer in Broken Hill for delivery to the buyer
in that city and in dismissing
the charge the magistrate construed s. 18(1) as not applying to sales of
potatoes in interstate trade. From the dismissal of the charge the appellant,
a Potato Board inspector
who was the complainant below, now appeals. (at
p123)
2. The respondent seeks to impugn the validity of s.18(1) upon two grounds,
each concerned with the impact upon interstate trade of the section's
prohibition upon the sale of potatoes by
an unregistered grower. First it is
said that the requirement of registration is no mere regulation of trade and
that the prohibition
of sale by unregistered growers does, in relation to
interstate trade, offend against s. 92; additionally it is contended that
because registration carries with it a liability to pay levies imposed by the
Board, this is in
itself enough to make even an otherwise innocuous
requirement of registration a burden obnoxious to s. 92. (at p123)
3. To obtain registration as a grower a form must be filled in giving
information as to production of potatoes and containing an
undertaking to grow
potatoes for sale. An applicant must then satisfy the Board that he is
growing or will grow potatoes for sale;
he thereupon becomes entitled, without
fee, to registration. (at p123)
4. The respondent points out that a grower of potatoes for sale who defers
his application for registration until all his crop has
been garnered and who
does not intend to grow another crop will be unable to establish any
entitlement to registration. However
the apparent injustice involved in this
seeming anomaly may be more apparent than real; because the prohibition in s.
18(1) extends not only to the selling but also to the growing of potatoes
while unregistered, such a grower's inability to obtain registration
will be a
consequence of his earlier failure to comply with the law and obtain, while
his crop was still in the ground, the registration
to which he would then not
only be entitled to but also bound by law to seek. (at p124)
5. The respondent also draws attention to the situation of a grower who does
not grow for sale, instead intending his potatoes exclusively
for use as seed
potatoes or for home consumption; he will neither be entitled to, nor required
to obtain, registration so long as
his intention not to sell his crop remains
unchanged. However, should he change his mind after all his potatoes have been
garnered,
while at the same time having no intention of growing further
potatoes for sale in the immediate future, he will not be entitled
to be
registered and his want of registration will mean that any sale of his crop,
albeit interstate, will constitute an offence
under s. 18(1). (at p124)
6. There is nothing to suggest that the respondent falls within any such
category. He was growing potatoes on about one and a half
acres, sufficient
on the evidence to yield about fifteen tons of potatoes, certainly a large
quantity for consumption by family or
friends or for his own use as seed
potatoes; he had, in fact, sold some of his crop to his Broken Hill buyer.
There is no evidence
whatever that he had grown his crop without any intention
of selling it and that, after digging all his crop, he changed his mind
and
formed the intent to sell some or all of it to the Broken Hill buyer, at the
same time intending not to grow a further crop.
(at p124)
7. The respondent seeks, nevertheless, to rely upon this feature of the
registration requirements of s. 18(1), that in certain conceivable
circumstances a grower will be unable to qualify for registration, to counter
the view that registration
is no more than a permissible regulation of trade
not inconsistent with s. 92. He relies also upon the requirement that an
applicant for registration must "satisfy" the Board of certain matters before
being
entitled to registration. (at p124)
8. Before dealing with these contentions I should state what I understood to
be the position at law so far as concerns the impact
upon interstate trade of
a requirement of registration. Such a requirement, applicable alike to intra-
and interstate sellers, will
not offend s. 92 if merely regulatory of trade.
If registration is readily available without onerous prerequisites and without
payment of any fee,
and is a reasonable and relevant requirement in the
circumstances of the trade it will, being non-discriminatory, be a valid
regulatory
law, so that although framed in terms of a prohibition upon sale
without prior registration it will not relevantly burden interstate
trade
(Hughes and Vale Pty. Ltd. v. New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127, at pp
160-161 ). The requirement
of registration
as a grower for sale, involving
the furnishing of the information
and the giving of the undertaking called for
in
the present case
is, in the context of the present legislation, in my view
both relevant
and reasonable. (at p125)
9. This being so, can the respondent none the less rely upon instances, not
shown to be applicable to his case, in which a particularly
situated grower
might not be able to satisfy the requirements of registration, using those
instances to deny to the requirement of
registration what is, in the
respondent's own circumstances, its character of mere innocuous regulation? I
think not. The relevance
of the distinction between mere regulation on the
one hand and burden or prohibition on the other lies in the different effect
each
produces upon the trade of he who invokes s. 92. One who relies upon s.
92 "cannot roam at large over the regulations and attack them generally. He
must be confined to those which affect his rights ..."
(Real Estate Institute
of New South Wales v. Blair, per Starke J. [1946] HCA 43; (1946) 73 CLR 213, at p 227 ); this
is as true
of an attack based
upon s. 92 as it was in the facts of that case.
The burden or obstruction complained of must be real and not merely "some
theoretical or speculative
transgression" of freedom - Hughes and Vale (No. 2)
(1955) 93 CLR, at p 160; cf at p 205 ; there must be "an actual burden upon
interstate
trade - a real impediment in its way" (Williams v. Metropolitan and
Export Abattoirs Board [1953] HCA 93; (1953) 89 CLR 66, at p
74 ). Otherwise
"the argument is
left to general reasoning and hypothetical cases" (Wilcox Mofflin Ltd. v.
New
South Wales [1952]
HCA 17; (1952) 85 CLR 488, at
p 518 ), whereas there is "much to be said
for the view that s. 92 should be applied only for the protection of
transactions actually existing which come within it and not to imaginary
cases" (1952)
85 CLR, at p 520 . The requirement of registration is not shown
to have involved any burden or prohibition upon the respondent's
interstate
trade and the fact that it is possible to conceive of others who might be so
circumstanced that the requirement would
impose a prohibition upon their
interstate trade affords him no standing to assert invalidity. (at p126)
10. The objection to reliance upon such hypothetical instances of the
burdening of trade is based upon no mere technicality. It
may very well be
that there neither is nor ever will be a grower of potatoes in South Australia
whose circumstances are such as to
preclude him from registration in a manner
offensive to s. 92. Such a grower would have to have grown potatoes for a
purpose other than sale, to have changed his mind and decided to sell them
after they had all been dug, to have engaged in a transaction involving the
interstate sale of his potatoes and, additionally, to
have possessed the
intention to refrain from again growing potatoes for sale. Without the
coincidence of all these circumstances
the requirements of registration can
readily be satisfied and will prove no relevant impediment to interstate
trade. A law should
not, in my view, be declared invalid when no interested
party's interstate trade is shown to have been burdened by it and when there
may never exist any trade so circumstanced as to be liable to be so burdened.
(at p126)
11. The requirement that the Board must be "satisfied" in certain respects
before registration can be attained means, says the respondent,
that
registration, far from being a matter of right, lies very much in the
discretion of the Board and may quite arbitrarily be denied
to an applicant.
Were this so the law would clearly enough offend against s. 92 but I cannot
regard s. 18 as having this effect. The satisfaction of the Board is made to
turn upon a quite precise question of fact, whether the applicant
"is
growing... potatoes for sale, either on land owned or occupied by him, or
under a share-farming agreement" or, alternatively,
whether the applicant
"will grow potatoes for sale" on such land or under such an agreement. Having
regard to the remedies available
should the Board fail to perform the duty
cast upon it to determine according to law a grower's application, there
appears to me
to be nothing so arbitrary in the Board's function of
determining applications for registration as to deprive the requirement of
registration of its character as permissible regulation of trade. (at p126)
12. I turn therefore to the quite distinct ground of attack, based upon the
exposure to the levy-making power of the Board which
is involved in becoming a
registered grower. This arises because of the terms in which s. 12 of the Act
imposes liability to levies made by the Board; it is those who are registered
under the Act who alone may be required
to contribute, by way of levies,
towards costs of the administration and execution of the Act. Hence, so the
argument goes, to require
registration as a prerequisite to sale, including
interstate sale, is to burden interstate trade by imposing upon it a potential
liability to levies. The argument concludes by drawing attention to the
nature of the Board's power to make levies. Levies may
be confined to
particular persons or classes of persons registered under the Act, no limits
are placed upon their amount or their
frequency and the moneys raised by
levies may be used for a wide variety of purposes, including the making good
of any losses incurred
by the Board in the course of its own trading in
potatoes. The respondent accordingly points to the fact that the Board's
power
to make levies could be used to impose real and perhaps discriminatory
burdens upon the trade of growers trading interstate. (at
p127)
13. Assuming for the moment that s. 12, if made applicable to a grower
engaged in interstate trade, would offend against s. 92, this does not, in my
view, bear upon the application of s. 18 to such a grower. The two sections
are quite distinct provisions, in no way interdependent and linked only by the
fact that those
growers who may be made liable to a levy under s. 12 are
identified by reference to their registration under s. 18. Any immunity from
exactions under s. 12 which a grower's engagement in interstate trade may
confer upon him will leave s. 18 unaffected; s. 22a of the Acts Interpretation
Act, 1915 (S.A.) permits s. 18 to operate whether or not s. 12 is capable of
valid application and in doing so ensures that, in accordance with s. 22a, the
legislation is accorded effect to the full extent to which it does not exceed
State legislative power. (at p127)
14. I would not, therefore, regard the existence of s. 12 as affording to the
respondent any defence to a charge founded upon his breach of s. 18. I have
earlier assumed, in considering the effect of s. 22a, that s. 12 is offensive
to s. 92 of the Constitution in its purported application to a grower engaged
in interstate trade. I am not, however, to be taken as necessarily accepting
the
correctness of this assumption, and this for two reasons. First, had the
respondent been registered as a grower under the Act there
is nothing to
suggest that he would in fact have become liable to pay a levy at all, let
alone a levy capable of being regarded as
burdening his interstate trade; the
evidence does not establish that the Board has ever made use of or threatens
to use its power
to impose a levy, still less that a levy burdening interstate
trade would be imposed. If a levy were imposed it might be imposed
only upon
that class of grower whose trade is confined to sales intrastate; again, if it
did extend to those engaged in interstate
trade, it might be confined to the
recovery from all growers of a fair proportion of the Board's costs of
providing services to them
- Freightlines and Construction Holding Ltd. v. New
South Wales [1967] UKPCHCA 1; (1967) 116 CLR 1; (1968) AC 625 and Harper v. Victoria,
per
Taylor
J. [1966] HCA 26; (1966) 114 CLR 361, at p 378 and per Menzies J. (1966) 114 CLR, at
p 379 - at which passages the
imposition of fees for services
was considered
in the context of s. 92 as well as that of s. 90. Reliance upon the levying
power in s. 12 as tainting with invalidity the requirement of registration
imposed by s. 18 may thus be thought to be a further instance of the use of a
hypothetical case with which to seek to establish the burdening of interstate
trade in circumstances in which the particular interstate trader can show no
real burden whatever which either affects or is likely
to affect him. (at
p128)
15. Secondly the view is at least open that s. 12 does not itself impose any
burden upon any trade. It does no more than authorize the Board to strike
levies payable by registered
growers, the Board having a very wide discretion
both as to the incidence and amount of any levy and as to the application of
the
proceeds. Whereas a levy struck by the Board might or might not burden
interstate trade the power to impose a levy may not itself
do so. A statute
which itself imposes a burden upon interstate trade, whether or not its
operation is subject to a discretionary
power to alleviate, is one thing; a
statute which confers a power of delegated legislation or some executive
power, either of which
may be used in a manner burdensome of interstate trade,
is quite another. If such powers be used so as to burden interstate trade
s.
92 will strike them down but the source of those powers, the statute itself,
may stand in a different position. (at p128)
16. A ready illustration lies in the field of road transport. It is common
legislative practice to enact that speed limits and
other rules of conduct on
the road may be declared by regulation; s. 4 of Victoria's Road Traffic Act is
such a provision. It was to such regulations that the joint judgment of Dixon
C.J. and McTiernan
and Webb JJ. in Hughes and Vale
(No. 2) referred (1955) 93
CLR, at p 163 ; prima facie they were but regulation of the interstate
transportation of goods by motor
vehicle and were unlikely to be inconsistent
with the freedom of that traffic. However their nature
would necessarily
depend upon
their content, "for a law which under the guise of regulating an
incident of interstate transport by
road creates a real obstruction
or
impediment to carrying it on does impair the freedom which s. 92 guarantees.
For example, a regulation
of the hours during which
certain goods may be
carried upon the Hume Highway or be brought into Sydney or Melbourne may fix
times
and periods that make the
use of motor vehicles for the purpose
practically impossible". In similar vein Dixon C.J., in Greutner
v. Everard
[1960] HCA 33; (1960) 103 CLR 177, at pp 183-184 , quoted at length from the judgment of
Fullagar J. in McCarter v. Brodie
[1950] HCA 18; (1950) 80
CLR 432 , a passage also cited in
extenso in the judgment delivered by Lord Morton of Henryton in the Hughes
and
Vale
Case (No. 1)
[1954] UKPCHCA 5; (1954) 93 CLR 1, at pp 23-28; (1955) AC 241, at pp 297-301 .
Fullagar J. there emphasized the
essentially regulatory character of
the
prescription of rules of conduct on the road, while at the same time pointing
out that they
might become a means of burdening
of interstate trade if, as in
the example given by his Honour, a speed limit of one mile per hour
were fixed
for traffic on the Hume
Highway. If such were to occur the statute under
which regulations of such a character were made
would, I think, remain valid,
only
the regulation made under it being void as offensive to s. 92. In Wilcox
Mofflin v. New South
Wales, in the joint judgment of Dixon
C.J. and McTiernan
and Fullagar JJ., their Honours said (1952) 85 CLR, at p 522 :
"In our opinion in the case of wide executive and administrative
authorities depending upon statute, s. 92 does
not operate to invalidate the whole statutory authority
because, in the purported exercise of the authority, administrative
measures may be taken which conflict with s. 92.
Unless upon the face of the statute some purpose appears of
authorizing some impairment of the freedom of interstate
commerce, the wide terms of the authority should not be
read as attempting to do so." (at p129)
17. In Kerr v. Pelly [1957] HCA 42; (1957) 97 CLR 310 it was sought to invalidate part of
an Ordinance empowering transport inspectors
to stop
vehicles and order that
they be weighed. In the joint judgment of Dixon C.J. and Fullagar, Kitto and
Taylor JJ., their Honours
referred
to the argument
that the possibility of
misuse of this power involved invalidity and said (1957) 97 CLR, at p 318 :
"To this particular argument it is enough to say that if
such a use of the power were made in any given case it
would amount to an interference with trade commerce and
intercourse which would be void; but the possibility of an
attempt being made to use the authority conferred by cl. 11
for such a purpose does not itself invalidate the authority".
"It was said, however, than an Act in these terms might
be abused. But the possibility of abuse cannot affect the
validity of the Act. And an allegation that an Act is in fact
abused is referable to the validity of the proclamation purporting
to have been made under it, and not to the validity
of the Act itself." (at p130)
18. The present legislation, and in particular s. 12, is of course rather
different from the type of legislation which was under
consideration in the
foregoing cases; it could not be
said of a non-discriminatory levy imposed by
the Board which in fact involved
casting of a burden upon interstate trade
that, in
the words of Starke J., it involved any abuse of the Board's powers.
On the contrary
such a levy might be directly within the contemplation
of the
legislation. However the fact that an exercise by the Board of its
power to
strike levies will, as I have said, not necessarily
result in a levy offensive
to s. 92 does in my view raise real doubts
whether in the present
circumstances s. 12 can be said to at all burden interstate trade. In view of
my conclusion as to the effect
of s. 22a of the Acts Interpretation Act it is
unnecessary for the decision of this case that the point should be finally
decided.
(at p130)
19. I would allow this appeal. (at p130)
MASON J. The respondent, a potato grower and seller in South Australia, was
acquitted on a charge of selling potatoes grown by
him, not being registered
by the South Australian Potato Board. He was charged with an offence against
s. 18(1) of the Potato Marketing
Act, 1948-1974 (S.A.) which provides that "a
person shall not grow potatoes for sale, or sell potatoes grown by him unless
he is
registered by the board as a grower". The magistrate held that the
section had no application to an interstate sale as it would
infringe s. 92 if
otherwise construed. The sale on which the charge was based was an interstate
sale. (at p130)
2. Section 18(1) and (2) provides:
"(1) A person shall not grow potatoes for sale, or sell(2) A person who -
potatoes grown by him unless he is registered by the board as
a grower.
(a) applies for registration in the prescribed form
and furnishes the board with the information
indicated on the form; and
(b) satisfies the board that in the period for which
registration is required he is growing or will grow
potatoes for sale, either on land owned or occupied
by him, or under a share-farming agreement;
shall be entitled to registration as a grower." (at p131)
3. To obtain registration an applicant must satisfy the Board that in the
period for which registration is required he is growing
or will grow potatoes
for sale - that and no more. Only if it is not so satisfied can the Board
refuse an application; it cannot
refuse an application capriciously. In the
event that it refuses to hear and determine an application according to law it
is compellable
by mandamus to perform its statutory duty. Its power to refuse
an application is so limited that the provisions of s. 18 do not
constitute an
obstacle to a person intending to engage in interstate trade in potatoes: cf.
the wide administrative discretions
which were held to contravene s. 92 in
Hughes and Vale Pty. Ltd. v. New South Wales (No. 1) [1954] UKPCHCA 5; (1954) 93 CLR 1; (1955)
AC 241 and Hughes
and Vale Pty. Ltd. v. New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR
127 . The information which an applicant
is required to furnish in his
application includes particulars of the acreage
planted or to be planted,
thereby providing the Board
with material from which it
may be able to
estimate the volume of future production,
which in turn may assist it in the
exercise
of powers conferred upon it
by s. 20. This section enables the Board
to control the
sale, delivery and price of potatoes. The system
of
registration consequently
ensures that on application growers or intending
growers
will provide information necessary or valuable
to it in the
performance
of its statutory functions. In this context s. 18 is regulatory
and does not contravene s. 92. (at p131)
4. Having read the judgments of Gibbs and Stephen JJ. I agree for the
reasons stated by their Honours that s. 12 is a distinct
provision independent
of s. 18. Whether s. 12 is obnoxious to s. 92 is not a question which I find
it necessary to decide, although
I recognize the force of the reasons for
judgment of Stephen J. which would suggest that the question should be
answered in the negative.
It is enough for me to say that, if s. 12 involves
a contravention of s. 92, then, as Gibbs J. has said, there is no reason why
the rules of interpretation contained in s. 22a of the Acts Interpretation
Act, 1915 (S.A.) should not apply. (at p132)
5. I would therefore allow the appeal. (at p132)
JACOBS J. In the absence of material to show or even to suggest that the
respondent would not have been able to obtain registration
without impediment
or that registration would in fact have imposed or have been likely to impose
substantial burdens on the respondent
I am of the opinion that the requirement
of registration did not operate to impose an impermissible burden on the trade
of the respondent
in selling his potatoes interstate. I agree with the
reasons given by Stephen J. and with his conclusion that the appeal should
be
allowed. (at p132)
MURPHY J. This case raises the question of the meaning and application of
the first sentence of s. 92 of the Constitution. Section 92 is in Ch. IV of
the Constitution, which is headed "Finance and Trade". This chapter deals
with financial matters and the leit-motif of the sections surrounding s. 92
(ss. 88-90 and 93-95) is duties of customs. (at p132)
2. Section 92 reads:
"92. On the imposition of uniform duties of customs,
trade, commerce, and intercourse among the States, whether
by means of internal carriage or ocean navigation, shall be
absolutely free.
But notwithstanding anything in this Constitution, goods
imported before the imposition of uniform duties of customs
into any State, or into any Colony which, whilst the goods
remain therein, becomes a State, shall, on thence passing into
another State within two years after the imposition of such
duties, be liable to any duty chargeable on the importation
of such goods into the Commonwealth, less any duty paid
in respect of the goods on their importation." (at p132)
3. Section 92 is generally taken out of context and abbreviated, eliminating
the reference to duties of customs and facilitating its misinterpretation.
When s. 92 is read in whole and in context, the command in the first sentence
clearly concerns freedom from customs duties or similar taxes
(often referred
to as fiscal imposts) on trade, commerce and intercourse among the States.
Section 92 does not guarantee economic anarchy. It is not a laissez-faire
provision freeing trade, commerce and intercourse among the States
from
regulation. (at p133)
4. The judicial approach of injecting into s. 92 the philosophy of
laissez-faire has caused a substantial and serious inroad into the spheres of
State and Federal legislatures.
Many laws (mainly State) have been declared
invalid and parliaments have consequently been inhibited from passing laws
which might
affect interstate trade and commerce. In this area, the Court has
adopted a legislative role. It acts as an additional House but
its role is
necessarily negative. It can veto but not initiate. (at p133)
5. One of the architects of this approach, Lord Wright (who delivered the
judgment of the Privy Council in James v. The Commonwealth
[1936] HCA 32; (1936) 55 CLR 1;
(1936) AC 578 ) made a dramatic recantation. In "Section 92 - A Problem
Piece" (Sydney Law Review, vol. 1 (1954), p. 146), he wrote:
"... the question ... should be asked ... what words or
context there are to justify so unfortunate and obscure a
reading of the section". (p. 147)
"...surely all this difficulty follows from not taking the
words in their obvious sense. No doubt to do so will mean a
great and concerted effort on the part of the judges. But it
may come in time." (p.147)
"...that s. 92 deals with fiscal matters alone gives sense
and efficacy to s. 92". (p. 155)
"The idea of s. 92 as a power in the air brooding and ready
in the name of freedom to crush and destroy social and
industrial or political experiments in Australian life ought,
I think, to be exploded. In truth, as I said, s. 92 is both
pedestrian and humble, though very essential from the point
of view of the founders of the Constitution who wished to
establish interstate free trade in fiscal matters for all time."
(p. 157) (at p133)
6. The misreading admitted by Lord Wright would have been avoided if the
Privy Council had applied what it recognized was the ordinary
meaning of free
trade: "Free trade means in ordinary parlance freedom from tariffs" (James'
Case (1936) 55 CLR, at p 56; (1936) AC,
at p 627 ). (at p133)
7. There has also been wide academic criticism. Professor Colin Howard
observed in 1968 that s. 92 (on the prevailing interpretation):
"...is little, if anything, more than an impediment to theProfessor Geoffrey Sawer said:
effective ordering of the economy on a nationwide basis.
This result approaches the antithesis of what the section was
originally intended to do." ("Freedom of Interstate Trade"
Melbourne University Law Review, vol. 6 (1968), p. 258.)
"The handling of this section by the Courts has been theirSee also Professor P.E. Nygh, "An Analysis of Judicial Approaches to the Interpretation of the Commerce Clause in Australia and the United States (Sydney Law Review, vol. 5 (1967), p. 353) and "The Concept of Freedom in Interstate Trade" (University of Queensland Law Journal, vol. 5 (1967), p. 317); Professor Howard, Australian Federal Constitutional Law, 2nd ed. (1972), Ch. 5; Professor P.H. Lane, Australian Federal System with United States Analogues (1972), pp. 595-675. (at p134)
one great constitutional failure...The failure may be partly
due to the bad drafting of s. 92, but it is also due partly to
limitations of our legal technique, which make it difficult for
our Courts to handle complex political and economic conceptions".
(Commonwealth of Australia (British Commonwealth
Series), vol. 2 (1952), p. 76.)
"This section has caused more differences of judicial opinion
and greater conflict between decisions than any other provision
of the Constitution. There has never been any doubt
as to the primary intention of the Founders. They wished to
do away between States with the border tariffs the abolition
of which was one of the main reasons for federating at all,
and they wished to embody this objective in a specific provision,
instead of leaving it to implication as in the U.S.
Constitution. There is also no doubt that the Founders anticipated
the possibility of 'indirect' fiscal protection by methods
other than border tariffs and differential excises, and accordingly
desired their guarantee of fiscal free trade between the
States to be stated with some generality and to be capable of
some flexibility of application." (p. 71)
9. An even more severe criticism of the judicial approach has been made by
Professor Julius Stone in "A Government of Laws and Yet
of Men being a Survey
of Half a Century of the Australian Commerce Power" (New York University Law
Review, vol. 25 (1950), p. 451).
(at p134)
10. Latham C.J. said on his retirement from this Court "When I die, s. 92 will be found written on my heart...A new approach is required to s. 92, and no approach has been made towards reconsideration of that provision" (85CLR ix). (at p134)
ANALYSIS OF THE COMMAND IN S. 92.
11. Meaning of "Trade and Commerce...Among the States". There has been a
tendency to narrow the meaning of the phrase, "trade and
commerce" in order to
lessen the destructive effects of interpreting s. 92 so that it applies to
other than fiscal charges. "...Among
the States" has been treated as simply
meaning "interstate". The phrase
should not be given a narrow meaning. It is
obviously comprehensive.
(at p135)
12. "Trade and commerce...Among the States" extends into areas of intrastate
commerce. The supposed line between interstate and
intrastate the "straight,
undeviating, Euclidian line" as Isaacs J. called it (Ex parte Nelson (No. 1)
(1928) 42
CLR 209, at p
234
), does not exist. (at p135)
13. Meaning of "intercourse". In the United States Constitution,
"intercourse" has been implied into the concept of "commerce". Marshall C.J.
said in Gibbons v. Ogden [1824] USSC 18; (1824) 9 Wheat 1, at p 189
(6 Law Ed 23, at p 68)
"Commerce, undoubtedly, is traffic, but it is something more, it is
'intercourse'."
As Corwin pointed out,
"Marshall qualified the word
'intercourse' with the word 'commercial', thus retaining the element of
monetary
transactions" (see
Constitution of United States of America
(Annotated) (1973) Senate Document No. 92-82, p. 143). However, the word was
included expressly in our
s. 92. The absence of the word from s. 51(i)
suggests that "intercourse" in s. 92 is not restricted to commercial
intercourse. (at p135)
14. Meaning of "Absolutely Free". The inclusion of this phrase means that s.
92 contains a command subject to no exceptions. It frees absolutely trade,
commerce and intercourse among the States from customs duties
or similar
taxes, direct or indirect. A toll on passage of persons is an example of a
fiscal charge on intercourse among the States.
A good example of an indirect
imposition is found in Fox v. Robbins [1909] HCA 81; (1909) 8 CLR 115 . Absolute freedom can
be
applied to fiscal
charges without difficulty, but it would produce chaos if
applied
to laws generally on interstate trade, commerce
and intercourse.
(at
p135)
15. The consequences of giving full expression to the words "absolutely free"
used in a wide sense not restricted to fiscal imposts
are so intolerable that
a doctrine has arisen by which the words "absolutely free" have been converted
to "relatively free", that
is, "subject to permissible regulation" on grounds
such as health and safety. Such a meaning can not be given to "absolutely
free".
Under the doctrine of permissible "regulatory laws", laws on interstate
trade and commerce may be regarded as regulatory. and therefore
permissible,
if they conform to certain tests. The tests are so obscure that (like the
prophecies of the Oracle at Delphi) they
can generally be shown to agree with
any outcome. As the Privy Council said in the Bank Nationalization Case, this
means that "the
problem to be solved will often be not so much legal as
political, social or economic. Yet it must be solved by a court of law"
(The
Commonwealth v. Bank of New South Wales (1949) CLR 497, at p 639; (1950) AC
235, at p 310 ). (at p136)
16. Section 92 has been described as guaranteeing freedom to the individual
(James v. The Commonwealth [1936] HCA 32; (1936) 55 CLR 1; (1936) AC
578 ) and the
party
claiming protection in this case is an individual. Departure from the fiscal
interpretation
of s. 92 leads to difficulties when a corporation claims
exemption from the laws of the legislature which created it. These
difficulties
have not been explored in cases on the section. The James Case
concerned an individual. In the Bank Nationalization Case, the claim
was for
protection from the legislature which did not create the banking companies.
With suitable drafting, legislatures could end
the laissez-faire exemption
from their laws claimed by companies created under their laws. (at p136)
RELATIONSHIP OF S. 92 TO THE COMMERCE POWER (S. 51(i.)) AND FREEDOM OF
MOVEMENT.
17. I will refer briefly to the relationship of s. 92 and s. 51(i.) and to
how the free movement of persons fits into the constitutional framework. (at
p136)
18. Power of States over Trade and Commerce. Subject to s. 92 (and other
constitutional limitations), the States have plenary power to pass laws even
if they impose a non-fiscal burden (direct
or indirect) on interstate trade or
commerce. Cases which have declared marketing and other State laws (not
imposing fiscal burdens)
invalid for contravention of s. 92 were wrongly
decided. (at p136)
19. The States are entitled (subject only to the prohibition against fiscal
imposts in s. 92, any other constitutional limitations (for example, s. 117),
and any overriding legislation of the Australian Parliament (see s. 109)) to
deal with the general law of trade, commerce and intercourse. Section 92 does
not prevent them from exercising the powers of regulating such trade and
commerce by marketing acts or otherwise. The mere
existence of the commerce
power (s. 51(i.)) does not operate as a restraint upon State legislative power
(as it does in the United States of America). (at p137)
20. Powers of Commonwealth over Trade and Commerce. The Parliament of the
Commonwealth has (subject to the command in s. 92 against fiscal charges and
to other constitutional limitations, such as s. 99) full power to legislate
for interstate trade and commerce (s. 51(i.)), and this "extends to navigation
and shipping, and to railways the property of any State" (s.98). The
Parliament has ample power to regulate the national economy by appropriate
exercise of its powers under s. 51(i.) (supplemented if necessary by other
powers). If a State marketing law hinders interstate trade, then it is in the
discretion of
the parliament of the Commonwealth to legislate so that (by the
operation of s. 109) the offending provisions of State law become invalid. (at
p137)
21. Section 92 and Freedom of Movement. The right of persons to move freely
across or within State borders is a fundamental right arising from
the union
of the people in an indissoluble Commonwealth. This right is so fundamental
that it is not likely it would be hidden away
in s. 92, restricted to
interstate intercourse in a clause dealing with uniform duties of customs, in
a chapter headed "Finance and Trade".
The right is not an absolute right, but
is almost absolute and could not be impaired, except on extremely strong
grounds such as
the administration of criminal justice in serious cases (see
R. v. Smithers; Ex parte Benson [1912] HCA 92; (1912) 16 CLR 99 , particularly
the
judgments
of Griffith C.J. and Barton J.). (See also Crandall v. Nevada [1867] USSC 15; (1867) 6 Wall 35
(18 Law Ed 744) ; Slaughter-House Cases
[1872] USSC 142; (1872) 16 Wall 36 (21 Law Ed 394) .) I
think that freedom to move across State borders arises from this fundamental
implication
of
the Constitution and not, as held in Gratwick v. Johnson [1945] HCA 7; (1945)
70 CLR 1 , from s. 92. (at p137)
22. The doctrine of stare decisis should not be applied to continue the
effect of reasoning which has made the State and federal
Parliaments almost
impotent in fields of social and economic importance. The task is to apply
the Constitution, not the judicial decisions. (at p137)
23. The Potato Marketing Act, 1948-1974 (S.A.) extends to trade and commerce
among the States. It does not impose fiscal charges.
Even if there were a
latent possibility of such imposition, there is no actual or threatened
imposition and certainly nothing in
the nature of a discriminatory imposition
against interstate trade or commerce. (at p137)
24. The Act has not contravened s. 92. It was not submitted that an appeal
does not lie against dismissal of the charges against
the respondent. I would
allow the appeal. (at p138)
ORDER
Appeal allowed with costs.
Orders of the Adelaide Court of Summary Jurisdiction set aside and in lieu
thereof order that the respondent be convicted of the
second charge specified
on the complaint.
Matter be referred back to that Court for determination of the question of
penalty and costs.
(HIGH COURT OF AUSTRALIA.)BUCK.........................APPELLANT;
INFORMANT,BAVONE.......................RESPONDENT;
AND
DEFENDANT,
ON APPEAL FROM THE COURT OF SUMMARY JURISDICTION
AT ADELAIDE, SOUTH AUSTRALIA.