Buck v Bavone

[1976] HCA 24

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

BUCK v. BAVONE

(1976) 135 CLR 110

14 May 1976

Constitutional Law (Cth)

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.

Decisions

1976, May 14.
The following written judgments were delivered:-
BARWICK C.J. The respondent, Luigi Bavone, in the course of his business as a potato grower and seller which he carried on at Salisbury Downs, South Australia, in November 1974 sold to a Mr. Pasarelli of Broken Hill, New South Wales, a quantity of potatoes which he had grown. The potatoes were to be delivered to Broken Hill. At the time of this sale the respondent was not registered as a grower of potatoes under the provisions of the Potato Marketing Act, 1948-1973 (S.A.) ("the Act"). (at p113)

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…