Duncan v State of Queensland

[1916] HCA 67

22 CLR 556

DUNCAN AND OTHERS

THE STATE OF QUEENSLAND AND Constitutional Law-Powers of Parliament of State-Freedom of inter-State trade

and commerce--Validity of State legislation-Goods to be held for public purpose -Prohibition of export-Qualification of rights of ownership-The Constitution (63 &64 Vict. c. 12), secs. 51 (I.), 86, 88, 90, 92, 99, 107, 112, 113-Meat Supply MELBOURNE,

for Imperial Uses Act 1914 (Qd.) (5 Geo. v. No. 2), secs. 4, 6, 7. Sept. 21, 22,

The Australian Constitution provides in sec. 92 that "trade, commerce, Oct. 2-6, 9,

and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free." This provision is not in all cases and necessarily violated by the Government of a State when it prevents the owner of a commodity ordinarily saleable from taking or sending it, in the course of trade, out of that State into another. Such a prevention is no violation of sec. 92 if it is effected by the State Government under the authority of legislation which, without actually expropriating the owner, expressly deprives him in respect of that commodity, whenever it is within the State, of rights ordinarily flowing from his ownership, such as the right of selling, or removing, or otherwise dealing with his commodity; provided that the statutory deprivation is a step towards an ultimate object the attainment of which is facilitated by, but might be lost without, the deprivation.

The Meat Supply for Imperial Uses Act 1914 (Qd.), which is entitled

' An Act to Secure Supplies of Meat for the uses of His Majesty's Imperial Government during War, and for other purposes," by sec. 4 defines the term " Chief Secretary," when used in the Act, as " the Chief Secretary of Queensland (or other Minister of the Crown for the time being discharging the duties of his office), acting for and on behalf of the Government of Queensland and His Majesty's Imperial Government" the word "stock" as meaning " cattle, sheep, and pigs, the meat whereof is intended for export or may be made available for export" and the word "meat" as meaning " the flesh and all other edible parts of stock when killed which are intended for export." &.

22 CLR 557

Sec. 6 is as follows :-" 1 It is hereby declared that all stock and meat in any place in Queensland are and have become and shall remain subject to this Act, and shall be held for the purposes of and shall be kept for the disposal of His Majesty's Imperial Government in aid of the supplies for His Majesty's armies in the present war. (2) Forthwith upon the making of an order in writing under the hand of the Chief Secretary, or the Under Secretary to the Chief Secretary, all stock and meat mentioned in such order shall cease to be the property of the then owner or owners thereof, and shall become and remain the absolute property of His Majesty, and property of the then owners thereof shall be changed into a right to receive payment of the value thereof

(5) Any person who refuses to deliver or delays or obstructs or hinders the delivery of stock or meat men- tioned or claimed to be mentioned in any such order liable to a penalty not exceeding £1,000 and to be imprisoned for any period not exceeding one year." Sec. 7 is as follows: " (1) All persons whosoever, including the owners, consignors, consignees, shippers, vendors, and pur- chasers of stock and meat, and each of their agents, attorneys, servants, and workmen, are hereby prohibited from selling, offering for sale, disposing of, forwarding, consigning, shipping, exporting, delivering, or in any manner what- soever dealing with any stock or meat (whether the same is or is not actually appropriated to His Majesty by an order made under this Act), except only in pursuance of and under the directions and orders of the Chief Secretary.

(3) Any person who does any act or makes any omission contrary to the prohibition in sub-sec. 1 hereof mentioned to a penalty not exceeding £1,000 and to be imprisoned for any period not exceeding one year.

Held, by Griffith C.J. and Higgins, Gavan Duffy, Powers and Rich JJ. (Barton and Isaacs JJ. dissenting), that none of those provisions violated the provision in sec. 92 of the Constitution that trade, commerce and intercourse among the States shall be absolutely free, and therefore that the Meat Supply for Imperial Uses Act 1914 was intra vires the Parliament of Queensland, and authorized the Government of Queensland to prevent the owner of fat cattle from selling or dealing with them. The main object of the Act is to secure a certain food supply to the Imperial Government for its use in time of war, and the effect upon inter-State trade is incidental and does not render the legis- lation invalid.

Per Higgins Exported " in the Constitution and in the Queensland Act means exported overseas, not "passing from State to State." Sec. 92 of the Constitution means that, given an owner, or other person who has power to sell, and given an article which is not removed from the scope of commerce by the laws of the State, there is to be no obstruction or restriction at the boundary of the State.

Per Barton J. and Isaacs J. (dissenting) as follows :-

1Secs. 6 (1) and 7 (1) and <(3) are invalid. The legislation does not transfer any fragment of ownership in the goods, but while leaving the 22 CLR 558

owner's property intact (a) declares it inalienable as to any interest whatever except to the Imperial and Queensland Governments if they should ever desire to take the goods, and also (b) even in the absence of that desire prohibits the owner from removing his goods into any other State without the permission of the Queensland Government.

(2) The legislation is therefore a contravention of sec. 92 of the Constitution. which, among other things, guarantees to every Australian who owns goods the absolute freedom to sell and deliver them to another person in another State, and guarantees to every person in another State the like absolute freedom to purchase the goods and receive and pay for them.

(3) This absolute freedom of trade and commerce is not inconsistent with the power of the Commonwealth and of the State to enforce the ordinary duties of citizenship, for instance, by (a) seizing person or property for crime, or to pay debts, or destroy articles injurious to health and morals, or in any other way to satisfy justice or (b) to actually expropriate property by which its ownership is transferred to another, who in turn becomes the owner.

New South Wales v. The Commonwealth, 20 C.L.R., 54, applied. Foggitt, Jones &amp;Co. v. New South Wales, 21 C.L.R., 357, overruled.

CASE STATED.

An action was brought in the High Court by Laura Duncan and Fitzroy Clarence Trotman, trustees of the will of William Duncan, deceased, and Laura Duncan, against the State of Queensland and John McEwan Hunter, the Minister for the Crown in the State of Queensland for the time being discharging the duties of the office of the Chief Secretary of the State of Queensland, claiming damages and other relief in respect of an alleged interference with the plain- tiffs' free disposition of their cattle which they proposed to remove from Queensland to South Australia. The action came on for hearing before Isaacs J., who, during the course of the hearing, directed certain questions to be argued before the Full Court, and stated the following case :-

"1. This case came before me sitting alone in the original juris- diction for trial. It stands part heard, and certain questions have arisen which I directed to be argued before a Full Court.

'2. It is admitted by the parties that the plaintiffs are residents of Queensland.

" 3. It is admitted that the defendant Hunter was, at all times material, acting as Chief Secretary of Queensland.

"4. Certain facts are admitted, namely, that the plaintiffs were

22 CLR 559

at all times material possessed of an unfenced station called ' Moora- berrie, and had a considerable number of cattle thereon, and were carrying on the ordinary business of stock owners in buying and selling and breeding cattle.

5. From before the beginning of March 1915 to 19th May 1916 the plaintiffs had a considerable number of fat cattle and a consider- able number of store cattle on the station.

6. The defendants on 19th May refused to the plaintiffs the permission which they requested by letter of 16th May 1916 to send some of their fat cattle to South Australia for sale there, as the plaintiffs would have done but for that refusal.

"7. Higher prices would have been obtained in South Australia than could have been obtained in Queensland, and the plaintiffs by reason of selling in Queensland sustained pecuniary loss.

" 8. The plaintiffs allege that they were prevented by the defen- dants from SO sending their fat cattle out of Queensland in March and April 1916 by reason of official conduct evidenced by certain letters and other documents.

"9. The plaintiffs in consequence of the defendants' official conduct aforesaid did not send their stores out of Queensland. If they had sent them to South Australia they would have received higher prices than were obtainable in Queensland, and they by reason of selling in Queensland sustained pecuniary loss.

" 10. The defendants by their agent, a police constable, entered upon Mooraberrie Station and remained there a considerable time. While there, they assumed possession of the cattle, fats and stores, thereupon.

" 11. It is alleged by the plaintiffs that during the time that the defendants maintained possession of the cattle the cattle were without necessary supervision and dispersed and some were lost and others deteriorated.

" 12. Plaintiffs allege, and have given evidence, that they had. prior to the acts complained of, made a contract with a drover to drove 600 head of fat cattle in May to South Australia, and have in consequence of the deprivation of the cattle been compelled to pay a sum to the drover in satisfaction of his claim for damages for breach of the contract.

22 CLR 560

"The following are the questions which were raised on the trial and which I have directed to be argued before a Full Court:

"1 Is the Queensland Meat Supply for Imperial Uses Act 1914 valid; and, if so, did it authorize the acts complained of ?

(The other questions and the arguments thereon are omitted from this report, as the High Court only dealt with the first question.)

Feez K.C. and Mann (with them Douglas), for the plaintiffs. Upon the decision in Foggitt, Jones &amp;Co. v. New South Wales (1), secs. 6 (1) and 7 of the Meat Supply for Imperial Uses Act 1914 are invalid, and did not authorize the Government of Queensland to prevent the plaintiffs from sending their stock into South Australia. The suggested construction of sec. 92, that it only requires that trade, commerce and intercourse between the States shall be free from pecuniary imposts, does violence to the language of the section. It is inconceivable that, if that were the object of the Legislature, they should have used the word "free," seeing that the most obvious interference with freedom is prohibition. The position in which sec. 92 is found does not support that construction. If it is con- strued as a prohibition of any interference whatever by the States with inter-State trade, commerce and intercourse, then its position is quite proper. If it is limited to pecuniary imposts, then SO far as they might be imposed by the Commonwealth the section is an appendage to sec. 51 (II.), and SO far as they might be imposed by the States it is an appendage to sec. 107. "Trade and commerce in sec. 92 have the same meaning as in sec. 51 (I.), and "intercourse" is put in the same position as "trade and commerce." It is a more striking abuse of language to say that the provision that inter- course between the States shall be free means only that such intercourse shall be free from pecuniary imposts upon individuals. The word "intercourse' includes everything that is included in the word "traffic." The suggested conflict between sec. 92 and sec. 51 (1.) does not arise with regard to "intercourse." One conse- quence of the narrower construction of sec. 92 is that its only effect is to put a limitation upon the power of the Commonwealth to place imposts upon inter-State trade and commerce, because the

121 C.L.R., 357. 22 CLR 561

power of the States to do it is expressly taken away by sec. 90. H. Sec. 112 is not a qualification upon sec. 92, but upon sec. 90. provides that, notwithstanding that the States are forbidden to impose customs and excise duties, they may nevertheless impose import and export charges for a particular purpose provided that the proceeds are handed over to the Commonwealth.

[ISAACS J. referred to Patapsco Guano Co. v. North Carolina Board of Agriculture 1.]

Sec. 113 supports the view that sec. 92 is a prohibition against any interference whatever on the part of the States with inter-State trade, for there would have been no need for sec. 113 unless there were elsewhere such a prohibition. Sec. 113 recognizes that as by the Constitution the States were prohibited from interfering with imposts it might be contended that they were powerless to apply the general State laws as to liquor to imported liquor. Sec. 92 is limited to the power of the States, and does not prevent the Common- wealth from imposing customs duties under the power given by sec. 51 (1.), Sec. 92 need not be cut down in order to give a meaning to sec. 51 (I.). In enacting sec. 92 the Legislature must have intended that inter-State trade and commerce should be preserved and fostered, and in that view they enacted that inter-State trade and commerce should be free. But that preservation and fostering could not be obtained without such regulation as is directed to its real freedom, for example, the Australian Industries Preservation Act 1906-1910. Sec. 92 may be taken as saying that there shall be an open door on the State borders which shall be free. Any regula- tion imposed by the Commonwealth under sec. 51 (I.) must be of a nature to secure that freedom. It is for this Court then to say whether Commonwealth legislation falls within the power conferred by sec. 51 (1.) or within the prohibition of sec. 92-does it substan- tially interfere with inter-State traffic, or is it substantially for the preservation of that traffic ? See R. v. Barger 2; John Deere Plow Co. v. Wharton 3; New South Wales v. The Common- wealth 4. The freedom secured by sec. 92 does not mean licence. If the power of the State to legislate as to crossing the State borders

1171 U.S., 345. 26 C.L.R., 41. 3(1915) A.C., 330. 420 C.L.R., 54. 22 CLR 562

is to be subject to the power of the Commonwealth Parliament

to enact overriding legislation, the same difficulty arises as upon the construction contended for by the plaintiffs, but the question would then be as to the conflicting powers of the State and the Common- wealth. If sec. 92 is limited to a prohibition of pecuniary imposts, then the Meat Supply for Imperial Uses Act is invalid under sec. 109 of the Constitution, for it is inconsistent with sec. 112A of the Customs Act 1901-1910, which deals with the export of goods from one State to another, and was intended to cover the whole field of legislation upon that subject. Sec. 7 of the Meat Supply for Imperial Uses Act is, in form and substance, a prohibition of the export of cattle from Queens- land to other States. Whether the object of the Act is to conserve all meat in Queensland for the use of His Majesty abroad, or for the use of the Government of the State, makes no difference as to its validity. The object being to keep cattle in Queensland, and that object being sought to be attained by prohibiting their export from Queensland, that prohibition cannot be said not to infringe sec. 92 because the Act is in a particular form and is based on some theory of the rights of property. Either what the Queensland Government has done is not authorized by the Act, or the Act is a violation of sec. 92 of the Constitution. It cannot be said that cattle in Queensland have by the Act been placed in custodia legis, for they have not ceased to be the property of the owners out of whose possession they are supposed to have been taken. [Counsel also referred to R. V. Smithers; Ex parte Benson 1; Oklahoma v. Kansas Natural Gas Co. 2 R. v. Lord Leigh 3.]

[ISAACS J. referred to Gulf, Colorado and Santa Fé Railway Co. V. Hefley 4; Louisville and Nashville Railroad Co. v. F. W. Cook Brewing Co. 5; Rossi v. Pennsylvania 6; Adams Express Co. V. Kentucky 7.]

Starke (with him Gregory), for the Commonwealth intervening. Sec. 92 of the Constitution is directed against governmental inter- ference with or control of trade, commerce and intercourse among

116 C.L.R., 99. 2221 U.S., 229. 3(1897) 1 Q.B., 132. 4158 U.S., 98, at p. 104. 5223 U.S., 70, at p. 81. 6238 U.S., 62. 7238 U.S., 190. 22 CLR 563

the States, and does not deal with the contracts or transactions of citizens. The section is a limitation upon the powers of the States to restrict inter-State trade. It does not apply to the Common- wealth, because sec. 51 (II.) and (III.) and sec. 99 contain the express limitations upon the powers of the Commonwealth: because any other interpretation would place the taxation of inter-State trans- actions in trade beyond the powers not only of the States but also of the Commonwealth, which would be unreasonable; and because the introduction of the word "intercourse" in sec. 92 makes it clear that the restriction extends over all travel and transportation amongst the States whether conducted for the purposes of trade or not, and yet the Commonwealth has no jurisdiction under the trade and commerce power as to intercourse which is not for the purposes of trade. The word "intercourse" was inserted in sec. 92 to give effect to the American doctrine which limits the powers of the States in the domain of foreign and inter-State trade. Cf. Prentice and Egan's Commerce Clause of the Federal Constitution, p. 44. Sec. 92 cannot be limited SO as to prohibit fiscal or pecuniary burdens only. Such an interpretation is opposed to the grammatical meaning of the words. Chapter IV. of the Constitution, in which sec. 92 occurs, is not confined to fiscal or pecuniary burdens. Such an interpretation would also make sec. 92 practically unnecessary SO far as the States are concerned, because the power of imposing customs and excise duties, which are the main fiscal burdens, is by secs. 86, 88 and 90 vested exclusively in the Commonwealth Parliament. The collocation of sec. 92 does not support such a construction. Sec. 112 does not aid the construction of sec. 92, for, whatever sec. 92 means, it would prohibit such charges as are men- tioned in sec. 112; SO that it was necessary expressly to authorize them. Sec. 98 reinforces sec. 92, and was probably framed, SO far as State railways are concerned, to meet the American doctrine that State instrumentalities are free from federal control. Sec. 102 also reinforces sec. 92, but as to railway rates the determination is placed in the hands of a non-judicial body, namely, the Inter- State Commission. So also as to sec. 104. The proviso to sec. 92 is necessary whatever construction be put upon the main part of it. The section aims at trading equality between the citizens of

22 CLR 564

the different States. Affirmatively sec. 92 prohibits any legislative

or executive act of the States which would prevent the free exchange or movement of lawful articles of commerce between the States or the free movement of citizens from one State to another. This QUEENS-

is a right secured and protected by the Constitution (Crutcher V. Kentucky 1 Vance v. W. A. Vandercook Co. [No. 1] 2 ). restriction operates as soon as subjects or operations of commerce are subjected to burdensome, conflicting or discriminating legisla- tion. The question, what articles are legitimate subjects of trade and commercial intercourse, is determined by the general commercial usage of the world, and does not depend upon the declaration of any State (Bowman v. Chicago and North-Western Railway Co. 3). The necessity of this rule is apparent. If Congress could regulate only those subjects which the States decided were proper subjects of federal regulation, the power of the States would be paramount to the power of Congress" (Prentice and Egan's Commerce Clause of the Federal Constitution, p. 49). A State therefore cannot refuse to permit any proper, i.e., lawful, subject of commerce to enter or leave its territory: it cannot take away from the owner or possessor of an article of commerce the attributes of that ownership and posses- sion, and SO deprive him of the right to engage that article in inter- State or foreign commerce (Prentice and Egan's Commerce Clause of the Federal Constitution, pp. 192, 224; Schollenberger v. Pennsylvania (4); Collins v. New Hampshire 5 Vance v. W. A. Vandercook Co. [No. 1] (2); Oklahoma v. Kansas Natural Gas Co. 6; Willoughby on the Constitution, vol. II., p. 695). Regulation is not necessarily a burden upon inter-State commerce. There are many laws in aid of commerce which the States may enact under sec. 107 of the Constitu- tion without infringing the provisions of sec. 92-e.g., laws with respect to public health (inspection laws), public morals or public order, which in America are called "police laws." See Willoughby on the Constitution, vol. II., p. 670. The question whether a law does or does not infringe sec. 92 must always be one for the judicial body to

1141 U.S., 47. 2170 U.S., 438. 3125 U.S., 465, at p. 501. 5171 U.S., 30. 6221 U.S., 229. 22 CLR 565

The test is whether the legislative act may by its neces- sary operation be destructive of the rights secured by the Constitution (Minnesota v. Barber 1; Brimmer v. Rebman (2) ). The Wheat Case 3 does not conflict with these principles. Although the States can compulsorily acquire the property of their citizens with or without compensation, vet the States cannot leave an article of commerce in the possession of their citizens and by lopping off some or all of the attributes of ownership destroy the right of their citizens to engage in inter-State commerce in that article. The power of regulating pro- perty and civil rights is in the States, but the right to engage in inter- State commerce is protected and secured by sec. 92 of the Constitution. Kidd v. Pearson (4) is based on the view that a prohibition of the manufacture of commodities does not impinge upon the domain of inter-State commerce. Geer v. Connecticut 5 is based on the view that wildfowl are not subjects of property in the citizens of the State. See Willoughby on the Constitution, vol. II., pp. 640, 676. [Counsel also referred to Cooley on Taxation, 3rd ed., vol. I., pp. 178-180 Powell v. Pennsylvania 6.]

[GRIFFITH C.J. referred to Musgrove v. Chung Teeong Toy 7. [ISAACS J. referred to Turner v. Maryland 8; Colonial Sugar Refining Co. v. Irving 9 Sioux Remedy Co. v. Cope 10; State Freight Tax Case 11.]

Ryan (A.G. for Queensland) and Mitchell K.C. (with them Latham), for the defendants. The Court should reconsider the decision in Foggitt, Jones &amp;Co. v. New South Wales 12. In con- sidering whether secs. 6 (1) and 7 of the Meat Supply for Imperial Uses Act are an infraction of sec. 92 of the Constitution, the circumstances existing at the time the Act was passed may be looked at in order to determine what is its nature (Lukey V. Edmunds 13 ). The existing necessity to obtain supplies of meat for the army shows what was the intention of the Legislature. The

1136 U.S., 313. 320 C.L.R., 54. 5161 U.S., 519. 6127 U.S., 678, at p. 683. 7(1891) A.C., 272. 8107 U.S., 38. 9(1906) A.C., 360, at p. 367. 10235 U.S., 197. 1115 Wall., 232, at p. 276. 1221 C.L.R., 357. 1321 C.L.R., 336, at p. 343. 22 CLR 566

effect of the Act was to remove stock and meat from commodities

which might be the subjects of trade and commerce. The State might validly have taken the whole property in all the stock and meat in Queensland (New South Wales v. The Commonwealth 1 ). It might equally take from the owner something less than all the rights of ownership. Whether sec. 6 (1) of the Meat Supply for Imperial Uses Act gives the Imperial Government an option of purchase or imposes a trust upon the owner, it has the effect of preventing stock and meat from being subjects of trade and commerce.

[ISAACS J. referred to Benedict v. Pincus 2; Galveston, Harris- burg and San Antonio Railway Co. v. Texas 3.]

The provision in sec. 92 of the Constitution that trade, commerce and intercourse between the States shall be absolutely free relates to freedom from anything in the nature of taxation, using that word in its largest sense. It does not operate as a prohibition against a State preventing goods or persons entering or departing from the State, unless and until the Commonwealth intervenes by a law which is inconsistent with, and therefore under sec. 109 of the Constitution overrides, the law of the State. Unless sec. 92 is limited to freedom from pecuniary imposts, sec. 112 cannot be read consistently with it, for sec. 112 assumes that a State has power to make inspection laws with regard to goods entering into or passing out from the State, and the State is not expressly given that power by the Constitution, and cannot have it if the freedom secured by sec. 92 includes freedom from all restrictions. See Harrison Moore's Commonwealth of Aus- tralia, 2nd ed., p. 565. Sec. 112 is necessary if sec. 92 is limited to the imposition of pecuniary imposts, because otherwise the States would have no power to levy charges on imports or exports. The power to enact inspection laws assumes a power to prevent the exportation and the importation of the goods which are the subject of those laws. That power the States had before federation, and it remains with them by virtue of sec. 107, for it is not taken away by sec. 92 if the latter section is confined to pecuniary imposts. Sec. 90 does not render sec. 92 unnecessary if it has this meaning, because sec. 92 was intended to bind the Commonwealth as well as

120 C.L.R., 54. 2191 N.Y., 377. 3210 U.S., 217, at p. 227. 22 CLR 567

the States. The effect of the American decisions is that the absence of power in the States to place duties on inter-State trade and commerce is put on the same grounds as in the case of any other kind of regulation or impediment. See Quick and Garran's Aus- tralian Constitution, p. 933; R. v. Smithers; Ex parte Benson 1. But the reasoning upon which those decisions are based can have no application to the Australian Constitution in view of sec. 107.

[ISAACS J. referred to Philadelphia and Southern Steamship Co. V. Pennsylvania 2.]

Sec. 7 (1) of the Meat Supply for Imperial Uses Act is a legislative withdrawal of goods from all commerce. The Act does not forbid the taking of cattle over the border as such.

[ISAACS J. referred to Attorney-General of Manitoba v. Manitoba Licence Holders' Association 3.]

The Act fixes cattle with the character of inalienability. It restricts the rights of property in a certain way. If the State can take away the whole of the rights of property, it can equally take awav part of those rights and vest them in the Government. If before goods come into inter-State trade the State imposes upon them a restriction the discrimen of which is based on inter-State trade, different considerations arise. The main object of the Act being the supply of cattle for the Imperial army, the fact that incidentally it interferes with inter-State trade does not invalidate the Act. [Counsel also referred to Quick and Garran's Australian Constitution, p. 531 Pennsylvania v. Wheeling and Belmont Bridge Co. 4; Kidd v. Pearson 5; Tucker on the United States Con- stitution, vol. II., p. 547; New South Wales v. The Commonwealth 6; St. Louis South-Western Railway Co. v. Arkansas 7.]

The meaning of "free" in sec. 92 cannot be determined without ascertaining the matter in respect of which the freedom is to exist. That matter must be something in respect of which trade, commerce and intercourse can be "absolutely " free without raising any incon- sistency between sec. 92 and other provisions of the Constitution, and without making other powers of the Parliament quite ineffective. If

116 C.L.R., 99, at p. 114. 2122 U.S., 326, at p. 336. 3(1902) A.C., 73, at p. 80. 413 How., 518; 18 How., 421. 5128 U.S., 1, at p. 18. 620 C.L.R., 54, at p. 98. 7235 U.S., 350, at p. 362. 22 CLR 568

"free be given the meaning of free from any pecuniary impositions or burdens" (which is at least a natural meaning having regard to the rest of sec. 92 and to the subject matter of the other sections among which sec. 92 is found), then (1) all the provisions of sec. 112 are consistent and appropriate (2) the Commonwealth is left with large powers of legislation under secs. 51 (I.), 99 and 100; (3) the States are left with large powers of concurrent legislation under sec. 107 (which are implied by sec. 112) and also under sec. 102, subject to any overriding legislation of the Commonwealth (secs. 109,102); (4) the Inter-State Commission has a reasonable scope of powers under sec. 101 with regard to laws made by the Commonwealth Parliament as to trade and commerce; and (5) such a construction allows full scope to be given to the word "absolute." No other suggested construction will fulfil those conditions in several material respects. The word "intercourse' is not inconsistent with that construction of sec. 92; the framers of the Constitution may be assumed to have had knowledge of the attempted imposition of pecuniary burdens upon persons entering or leaving a State. Nor is sec. 104 inconsistent with that interpretation; its provisions are referable to the provisions of secs. 98 and 102.

The fact that the Commonwealth Parliament has overriding powers of legislation prevents weight being given to the argument that it is improbable that the States should have been left free to impose restrictions other than pecuniary ones, at their discretion. The power to impose such restrictions is sometimes essential to preserve the people or industries of a State from contamination, infection or other detriment, but, if exercised in a way that is injurious to the Commonwealth as a whole or unfair to other States, the Commonwealth Parliament can interfere. If the word "free" were given the meaning of free from any restriction, whether pecuniary or not, then :-(1) It would be impossible to give to the word "absolutely " its ordinary and natural meaning without making sec. 92 inconsistent with sec. 112, which assumes that the States have power under sec. 107 to pass at least inspection laws in respect of goods "passing into and out of the State "this difficulty would still exist even if sec. 92 were held not to apply to the Commonwealth. (2) The legislative powers of the Commonwealth Parliament under

22 CLR 569

sec. 51 (I.) as to inter-State trade and commerce would be illusory, unless, indeed, it were held that sec. 92 does not apply to the Com- monwealth, a view which presents very great difficulties as to con- struction and as to consequences. Assuming sec. 92 does apply to the Commonwealth, the Parliament under sec. 51 (1.) could not legislate SO as to impose restrictions on inter-State trade and is incapable of making it more free than "absolutely free." The Commonwealth Parliament's powers of legislation under secs. 98 and 99 as to inter-State trade and commerce would be very meagre, although limited fields of legislation may be suggested. The Inter- State Commission would practically have no powers as to laws made by the Commonwealth. 3 Assuming that sec. 92 applies to the Commonwealth, the powers of the Parliament to legislate under sec. 51 (VI.) as to defence would be unduly and most seriously restricted. The power of legislating as to defence is as much subject to the provisions of sec. 92 as is the power of legislating as to trade and commerce. 4 Finally, the limitations upon the words "abso- lutely free " which have been suggested by counsel for the appellants and for the Commonwealth would raise extraordinary difficulties as to some of which no test has been suggested in order to enable them to be determined. The suggestion that sec. 92 does not apply to the Commonwealth is inconsistent with the freedom referred to being 'absolute," for the Commonwealth would have power to create any kind of border duties SO long as they were uniform as regards all the States, and it would be absurd to say that trade between the States was absolutely free if duties imposed by the Commonwealth Parlia- ment had to be paid when crossing the borders. The language of the proviso to sec. 92 clearly relates to the Commonwealth, and is therefore against that suggestion. If only the States were intended to be affected the change in language from sections like secs. 99, 100, 114, 115 and 116 is very marked and difficult of explanation.

[During argument reference was also made to Fox v. Robbins 1 Sligh v. Kirkwood (2); Attorney-General for Canada v. Attorney- General for Alberta (3); London and South-Western Railway Co. V. Gomm (4); Bartemeyer v. Iowa 5 Minnesota Rate Cases 6

3(1916) 1 A.C., 588. 420 Ch. D., 562, at p. 581. 18 C.L.R., 115. 518 Wall., 129, at p. 137. 6230 U.S., 352, at p. 398. 22 CLR 570

OF Sevenoaks &amp;. Railway Co. v. London, Chatham and Dover Railway

Co. 1; Williams v. Howarth 2; Dicey's Conflict of Laws, 2nd ed., p. 520 MacDermott v. Corrie 3; The Zamora 4; Kansas V. Haskell 5 New York, ex rel. Silz, v. Hesterberg 6; Farey V. Burvett 7; Slattery v. Naylor 8; Widgee Shire Council V. Bonney 9; Kruse v. Johnson 10; Woodruff v. Parham 11.]

GRIFFITH C.J. The majority of the Court are of opinion that the Meat Supply for Imperial Uses Act 1914 is valid, and authorized the acts complained of. The reasons will be given later.

The following judgments were read -

GRIFFITH C.J. The plaintiffs claim damages and other relief in respect of an interference with their free disposition of cattle, of which they claim to be the owners, and which they proposed to remove from the State of Queensland, in one case to New South Wales, and in another to South Australia. It is not disputed that the proposed removals would have been operations of trade and commerce and intercourse between the States. The foundation of the action is that the interference complained of was unlawful as being in contravention of the provisions of sec. 92 of the Constitution, which declares that, from and after a day long since passed, "trade, commerce, and intercourse among the States shall be absolutely free." The defendants contend that this declaration of freedom, whatever else it means, extends only to freedom from interference by means of the imposition of fiscal burdens, and permits absolute prohibition of export and import. As a matter of words, it is diffi- cult to see how an act absolutely prohibited can at the same time be absolutely free.

I think it necessary at the outset to repeat the warning against using the same word in two different senses in the same syllogism,

111 Ch. D., 625, at p. 635. 2(1905) A.C., 551. 317 C.L.R., 223, at p. 245. 4(1916) 2 A.C., 77, at p. 102. 5172 Fed. Rep., 545, at p. 562. 6211 U.S., 31, at p. 41. 721 C.L.R., 433. 813 App. Cas., 446, at p. 452. 94 C.L.R., 977. 10(1898) 2 Q.B., 91, at p. 99. 118 Wall., 123. 22 CLR 571

and also against first assuming that a question of construction can be solved by affixing a label to a subject matter, e.g., "freedom," 'ownership," `power of disposition," and then assuming the meaning of the label. These are familiar forms of petitio principii.

The first question referred to the Court is whether the Queensland Meat Supply for Imperial Uses Act 1914 is valid, and, if so, whether it authorized the acts complained of.

The first argument relied upon in support of the defendants' contention is based upon the collocation of sec. 92 of the Constitution, which, it is suggested, shows that its operation was intended to be limited as contended for. That section is one of a group of sections, 86 to 95, forming part of Chapter IV., which is headed " Finance and Trade." In construing them I apply the principles laid down in Heydon's Case (1). It is an important historical fact that one of the supposed great disadvantages of the pre-federation distribution of governmental powers in what is now the Commonwealth of Australia was the interference, both potential and actual, with freedom of intercourse among the States. This interference was mainly effected by means of customs duties imposed upon goods passing from one Colony into another, which in some cases were a source of revenue by no means negligible. It was, after long dis- cussion. finally admitted that the continuance of such interference was incompatible with a federal union. But the power of inter- ference was neither in theory nor in practice limited to duties of customs. It might be exercised by absolute prohibition of the entry of specified goods or persons or by imposing restrictive conditions upon either, and had in fact been SO exercised. As a matter of legis- lative practice the prohibition of import and export has always been treated as a matter to be included in an Act regulating the customs.

Sec. 86 of the Constitution enacted that upon the establishment of the Commonwealth the collection and control of duties of customs and of excise and the control of the payment of bounties should pass to the Executive Government of the Commonwealth. Sec. 88 required that uniform duties of customs should be imposed within two years after the establishment of the Commonwealth.

22 CLR 572

A. In the meantime the laws of the States as to the imposition, though

not the collection and control, of customs and excise duties remained in force, and might be altered by the State Legislatures. Sec. 90 provided that on the imposition of uniform duties of customs the QUEENS-

power of the Commonwealth Parliament to impose duties of customs and excise and to grant bounties on production or export should become exclusive and the State laws in the subject shall cease to have effect. Sec. 92, following these sections, declared that on the imposition of uniform duties of customs by the Parliament trade, commerce and intercourse among the States should be "absolutely free." So far as regards the previous power of the States to restrict inter-State intercourse by imposing duties of customs this provision was unnecessary, since it was expressly denied by sec. 90. What, then, was the occasion for making it in its actual form ? The occasion manifestly was that restraint of trade and intercourse by means of customs and excise duties was only one form of restraint, another well known form being absolute prohibition, and another the imposition of licence fees. If the territory of the Commonwealth was for all purposes of trade and intercourse to be regarded as a single undivided area it was desir- able, if not necessary, to say SO in plain language. It was hardly necessary to provide for the possibility of the Commonwealth Parliament proposing to re-establish the disadvantages arising from the old system of division into separate areas with separate legislative authorities, but even that possibility was dealt with by sec. 99, which provided that the Commonwealth would not by any regulation of trade, commerce or revenue give preference to one State over another State. The usual way in which such a preference had hitherto been obtained by one State over another had been by the imposition of border duties. Prima facie, there- fore, sec. 99 would operate to prevent the Commonwealth from reimposing such duties. Whether, in the face of the express denial of sec. 99, they could be supported under some other part of the Constitution is an interesting question which it will be soon enough to decide if and when it is proposed to impose them. An elaborate argument was addressed to us on the question whether sec. 92, whatever it means, binds the Commonwealth. As at present advised,

22 CLR 573

I cannot see any good reason for limiting its construction as con- tended for by Mr. Starke, but, as I have said, it is not necessary to decide the point, and I keep my mind open upon it. The possi- bility of a State endeavouring to bring about such a result was, however, a real one. The large words of sec. 92 were, therefore, necessary, and their meaning cannot be cut down to the extent contended for.

But the word "free does not mean extra legem, any more than freedom means anarchy. We boast of being an absolutely free people, but that does not mean that we are not subject to law. I will return to this point later, and now pass to the defendants' next argument, which is based upon sec. 112 of the Constitution. That section permits a State to levy on imports and exports or on goods passing into or out of the State such charges as may be necessary to execute the inspection laws of the State, but SO that the net produce of all charges SO levied shall be for the use of the Commonwealth, and that anv such inspection laws may be annulled by the Commonwealth Parliament. It is contended that this sec- tion shows that sec. 92 must be limited to fiscal restrictions. All that it shows is that, SO far as it applies to fiscal restrictions, it is not to apply to the case of inspection laws, which on one construc- tion of it might be within its terms. It, therefore, operates as an exception from or qualification of sec. 92. But, as observed by Lord Wrenbury in the case of Horlock v. Best 1, when a Statute provides that in certain events a certain result shall ensue it is plainly not enacting what is to result in other events.

A third and more weighty argument was based upon sec. 51, pl. I., of the Constitution, which provides that the Parliament shall

subject to the Constitution" have power to make laws for the peace, order and good government of the Commonwealth with respect to "trade and commerce among the States." These are the very words of sec. 92, and it is contended that they must be read subject to that section, which also is part of the Constitution. It is then pointed out that any law with respect to trade and commerce must diminish the freedom which a man would otherwise have to conduct trade and commerce at will, and must, therefore, be a

1(1916) I A.C., 486, at p. 525. 22 CLR 574

OF A. restriction of the absolute freedom guaranteed by sec. 92. The

argument sounds plausible, but it is in reality, like SO many other of the arguments addressed to us on both sides, a petitio principii, for it assumes a particular meaning to be assigned to the word "free." If, however, that word is susceptible of meaning that trade and commerce between the States shall not be subject to legislative regulation, the two provisions of the Constitution would be in direct contradiction. In such a case it is a recognized rule of construction that they must, if possible, be SO construed as to reconcile them. The addition of the word "intercourse" in sec. 92 to the words "trade and commerce of sec. 51 (I.) shows that, although the two sections deal with the same subject matter, they deal with it in different aspects. In this connection sec. 107, which continues to the Parliaments of the States all powers not withdrawn from them by the Constitution, must also be considered. These powers include a power to legislate on the subject of inter-State trade and commerce SO far as regards intra-State transactions. Subject to any paramount law of the Commonwealth, when all these provisions are read together, as they must be, I find no diffi- culty in reconciling them by holding, as I do hold, that the word

' free ' in sec. 92 means free from any restriction conditioned upon the circumstance of passing from one State into another, but in all other respects subject to the laws of the Commonwealth or the States, as the case may be, regulating the conduct of persons and their rights with respect to property within the jurisdiction of the Legislature which makes the law. This construction, which is that suggested by the collocation of the section in the Act, recon- ciles and gives full effect to all the provisions of the Constitution, and in my judgment it expresses the true meaning and the only meaning of sec. 92.

The question for determination then comes to be whether, elimin- ating the element of the proposed destination of the property sought to be removed, the disposition of it in the manner which the defendants prevented would have been a lawful disposition. For, if it would have been unlawful, no action would lie for damages for preventing it. What, therefore, is the right of the plaintiffs with respect to the cattle in question which has been infringed ?

22 CLR 575

Sec. 92 does not confer, and does not purport to confer, any new right of property. This position is conceded in terms, but denied in substance, by the plaintiffs, as I shall show. If the word "free " does not mean extra legem, it means liberty of individual persons to do any such acts as the relevant law allows them to do. It assumes the existence of that liberty, and says that it shall not be interfered with on the ground that, if exercised, it will involve crossing a State border line. In other words, it does not create a new form of liberty, but prohibits certain restrictions upon a liberty assumed to be already existing. If the act itself is not permitted by the relevant law of the State, the element of crossing the border line in the course of doing it is quite irrelevant. In other words, an intention to pass from one State to another does not make lawful an act which would otherwise be unlawful, as, for instance, to drive wild cattle in daylight on to a bridge crossing the Murray River (if that act is prohibited by a State law). Any other doctrine would make strange incursions into the powers of the States to regu- late their internal affairs.

The acts complained of by the defendants were done under the assumed authority of the Meat Supply for Imperial Uses Act 1914. The plaintiffs contend that that Act is not a valid exercise of the power of the Legislature of Queensland. It is necessary, therefore, to examine the Act and see what is its real character and effect. In doing SO I again apply the rule in Heydon's Case (1). The occa- sion of passing the Act is in part shown by its title: " An Act to Secure Supplies of Meat for the uses of His Majesty's Imperial Government during War, and for other purposes." The Court is bound to take judicial notice of the War, and of the fact that an adequate supply of meat to the Forces is essential to the effectual prosecution of the War. It must also take judicial notice of the fact that the State of Queensland is one of the most important sources of meat supply in the Empire, and further that stock are bred for the purpose of the export of their flesh as meat in almost every part of its vast area, which is equal to the combined areas of the German and Austro-Hungarian Empires and the French Republic. Further it was a notorious fact in 1914 that large

22 CLR 576

quantities of frozen and chilled meat were exported oversea from

Queensland to Europe.

The powers of the Legislature of Queensland extend to making laws for the peace, order and good government of that State in all QUEENS-

cases whatsoever. In my judgment a law having for its object to make the stock bred in Queensland available for the food of the Imperial Forces is a law conducive to the good government of that State as part of the Empire. The Meat Supply Act purports to provide that the owners of stock the meat whereof is intended for export or mav be made available for export, and the flesh of such stock when killed, shall be deprived of the right of free disposition as owners, and that their right of disposition shall only be exercised with the approval of the Chief Secretary, acting as well for the Government of Queensland as for the Imperial Government, with the object that the stock and meat shall be available for use, if and as required, as food for the Imperial Forces in the present war. To refer to the Act in detail: Sec. 4 declares that the term 'Chief Secretary when used in the Act means the Minister for the time being discharging the duties of that office acting for and on behalf of the Government of Queensland and His Majesty's Imperial Government. I listened with some surprise to an argument that it is impossible for a Minister of State of a dependency to act on behalf of the Imperial Government in that dependency. It is, of course, impossible for the State Legislature to confer on a State Minister authority to act on behalf of the Imperial Government without its consent, but I should have thought, and do think, that in time of a war in which the whole Empire is engaged the Imperial Government may invoke the help of any part of it, or the services of a Minister of any part, and that the State Legislatures may not only authorize the State officers to give the help asked for but enact any law which will render that help effective or more effective. In my opinion, then, the Chief Secretary, when assuming to take action under the Act, is to be treated as acting on behalf of the Imperial Government. It was finally objected that there was no evidence that he did SO act. The objection is without foundation in fact, but if there was no evidence I think that the presumption

22 CLR 577

in favour of the authority of a person acting as a public officer H. could not find a more appropriate occasion for its application.

To proceed-sec. 6 declares (par. 1) that all stock and meat in Queensland are and have become and shall remain subject to this Act, and shall be held for the purposes of and shall be kept for the disposal of His Majesty's Imperial Government in aid of the supplies of His Majesty's armies in the present war." It then provides (par. 2) that upon the making of an order in writing by the Chief Secretary or his Under Secretary all stock and meat mentioned in the order shall become the property of His Majesty, and the property of the owners shall be changed into a right to receive payment of the value of the stock and meat taken. Heavy penalties are imposed for refusal or hindrance of delivery of stock or meat SO taken. I pause to remark that the term "His Majesty" in par. 2 manifestly means His Majesty in the capacity of head of the Imperial Govern- ment, as mentioned in par. 1, and that the mention of the Under Secretary is a mere detail recognizing a well known practice of all government departments.

Sec. 7 provides as follows " All persons whosoever, including the owners, consignors, consignees, shippers, vendors, and purchasers of stock and meat, and each of their agents, attorneys, servants, and workmen, are hereby prohibited from selling, offering for sale, disposing of, forwarding, consigning, shipping, exporting, delivering, or in any manner whatsoever dealing with any stock or meat (whether the same is or is not actually appropriated to His Majesty by an order made under this Act), except only in pursuance of and under the directions and orders of the Chief Secretary."

Heavy penalties are imposed for any infraction of this provision also,

What, then, is the effect of these provisions ? and are they obnoxious to the provisions of sec. 92 of the Constitution ?

In the first place, I am of opinion that the declaration that the stock and meat shall be held for the purposes of and shall be kept for the disposal of His Majesty's Imperial Government operates as a dedication of the stock and meat to public purposes. It is said that this is a form of dedication unknown to the common law. No doubt it is, and possibly a better word may be found to describe

22 CLR 578

it. In the case of The Parlement Belge 1 Lord Esher M.R. used

the word "destined" to denote a similar concept. I do not use the word "dedication" in the technical sense in which it is used in connection with the dedication of a highway or a park to public use, but in its proper etymological sense of a setting apart of a person or thing for some specified use. If the effect of the Act is to create an interest in property which was unknown to the common law, it is none the less within the competence of Parliament to do SO. As Jessel M.R. said in Sevenoaks &amp;. Railway Co. v. London, Chatham and Dover Railway Co. 2: " An Act of Parliament has power to create interests which were unknown to the common law, and which could not be created between individuals by contract."

In my opinion the effect of the Act is to create in His Majesty in right of the Imperial Government a right of the nature of a special ownership or interest in the stock and meat which is incon- sistent with its use for any other purposes, just as a dedication of a highway deprives the owner of the soil of the right of digging up and removing the soil. In this view, the plaintiffs are claiming damages for being prevented from exercising a right of dominion over property over which they had no such right of dominion as they claimed to exercise.

From another point of view I am of opinion that the Act may be regarded as placing the stock and meat in custodia legis, and the possessor in a position analogous to that of a receiver of property appointed by a Court of Justice, who, although he may himself be the owner of the property, is debarred from exercising any right of ownership except subject to the control of the Court. I cannot conceive of any objection to the validity of such a law. In this view also the plaintiffs' case fails.

In the third place, and apart altogether from the two grounds I have just stated, I am of opinion that the Act does not touch the subject of trade and commerce in the sense in which that term is used in sec. 92 of the Constitution.

It is not, and cannot be, denied that under the Constitution the States retain full and exclusive power to make laws with respect to the acquisition of property, real or personal, situated within

15 P.D., 197, at p. 210. 211 Ch. D., 625, at pp. 635. 22 CLR 579

their territorial limits, the conditions of the use and enjoyment of H. such property, the capacity of the possessor or any other person to dispose of it, and the rights of succession to it. All these are usual incidents of property. But capacity of disposition does not of itself connote ownership, nor does ownership of itself necessarily connote capacity of disposition. In the jurisprudence of other countries provisions for depriving a person who is entitled to the whole beneficial interest in property of the capacity of free disposition are common, and they are not unknown in some parts of the British Dominions. An infant or an idiot may be the owner of property, but has no capacity of disposition. At present the age limit for capacity of disposition of property is in Australia twenty-one years, but it cannot be disputed that that age might be either raised or lowered by State law. Capacity of disposition is, therefore, only one of the usual incidents of the ownership of property, and it is as much subject to the laws of the country in which the property is situated as any other incident of ownership.

Another mode of limiting the right of disposition of property is by attaching the condition of inalienability or immobility to the property itself. Either mode is equally effective, SO far as regards any claim of the possessor to be allowed to dispose of the property. The doctrine that particular property may be put extra commercium is a very old one, recognized by the Roman law. An interesting example is given by Lord Shaw of Dunfermline in the case of Horlock V. Best 1. The instance given is that of land in which a dead human body had been buried, and which thereupon became incapable of being the subject of any commercial dealing.

Trade and commerce consists of acts as applied to things. The concept of it, therefore, includes both a subject matter and an agent. To take an instance very often used in Roman jurisprudence, that of slaves-if the law allows living human beings to be bought and sold they are a subject matter of trade and commerce. But when the law no longer allows them to be bought and sold the term "trade and commerce is no longer applicable to them. So, if the law forbade the sale of a child under the age of ten without the consent of the Praetor, or apart from the sale of his father or

1(1916) 1 A.C., at p. 514. 22 CLR 580

mother, such children would only be the subject of trade and com-

merce upon those conditions. Similar restrictions could be applied to any other form of property.

The plain effect of the provisions of the Meat Supply Act which

I have read is to qualify the general law as to the incidents of owner- ship of property with respect to stock and meat of the specified kind by depriving the owner of the capacity of free disposition,

SO that he has no power, except under the directions and orders of the Chief Secretary, to make any disposition of such stock or meat for any purposes whatever.

The plaintiffs contend that the Act is therefore invalid because, they say, its necessarv effect is to render impracticable the employ- ment of such stock and meat in inter-State trade, as, no doubt, it is. For, although the Act does not in terms forbid the passage of the stock and meat into another State (unless indeed the word "exporting" in sec. 7 bears that meaning-I think it does not- in which view, if it were obnoxious to sec. 92 of the Constitution, it would clearly be severable from the rest of the provisions of the section), it deprives the possessor of the capacity to move them from the place in which they are, without which movement they cannot pass into another State. Having regard to the area of the State of Queensland, the importance of the denial of this capacity is obvious. But this result is not that which it is the main object of the Act to accomplish, or, as Lord Watson said in Union Colliery Co. of British Columbia v. Bryden 1, is not the "pith and sub- stance" of the Act, but a merely incidental consequence of its operation. The effect of the Act is that the stock and meat in question cannot under the law of Queensland become the subject matter of trade and commerce, since the possessors of them are denied by law any capacity to dispose of them at all. But its main object was to conserve the stock and meat for the use of the Imperial Forces.

In the fourth place I am of opinion that the Act is not obnoxious to sec. 92 of the Constitution, because it does not impose any restric- tions upon export conditioned upon passing from one State into

1(1899) A.C., 580, at p. 587. 22 CLR 581

another, and is therefore, for the reasons I have given in an earlier H. part of this opinion, not within the terms of that section.

If sec. 92 is to receive the wide meaning contended for by the plaintiffs, it not only involves what is, in effect, a partial with- drawal from the States of their legislative power to control the law as to the disposition of any property which the owner may desire to employ in inter-State trade and commerce, but leaves that law stereotyped in the form in which it existed at the date of the estab- lishment of the Commonwealth, without substituting any other legislative authority in place of the States. For it cannot be sug- gested that the Commonwealth power to make laws with respect to trade and commerce can override the State laws as to such matters as the following, amongst others: whether a particular trade may be lawfully carried on within the State, or whether a particular class of persons shall have capacity to dispose of property, or whether particular property shall be placed extra commercium. That such a result could have been contemplated is, to my mind, unthink- able.

The argument is hardly distinguishable from that which finds in the precept "Thou shalt not kill" an absolute prohibition of war, since war cannot be waged without involving the loss of human life. It is difficult to meet such arguments except by denying the inter- pretation sought to be put upon the language interpreted.

I am unable to distinguish the present case in principle from the decision of this Court in the Wheat Case 1. In that case the Court held that a Statute of New South Wales which had the effect of expropriating all the wheat in that State to the Government was not obnoxious to sec. 92, since the new owners, who alone had capacity to dispose of the wheat, could freely exercise that power by exporting it to another State or not, as they pleased. The judgment was based on the acquisition of the complete owner- ship. But, in truth, the only material incident of ownership then in question was the capacity of free disposition. If the only person who is capable of disposing of property is left free to dispose of it as he pleases, there is no interference with freedom of disposition.

The conclusion at which I have arrived is inconsistent with the

120 C.L.R., 54. 22 CLR 582

decision of this Court in the case of Foggitt, Jones &amp;Co. v. New South

Wales 1, in which it was held that a Statute of New South Wales, not distinguishable in its terms from the Act now under considera- tion, did not authorize the Government of New South Wales to prevent the export of stock. That case was very briefly, and, I regret to say, insufficiently, argued and considered, on the last day of the Sydney Sittings. The section corresponding to sec. 7 of the Meat Supply Act was not referred to either in argument or in the judgments. It was not suggested that the stock were impressed with anything in the nature of a trust, or were placed in custodia legis. The arguments which now commend themselves to me as conclusive did not then find entrance to my mind. In my judgment that case was wrongly decided, and should be overruled.

The case presents itself to me as analogous to an action by a child of tender years against his nurse for not allowing him to go for a walk across the border between Queensland and New South Wales, or an action by an infant against his guardian for damages for preventing him from disposing of his property without the guardian's consent, with the difference that in this case the pro- posed disposition is forbidden by positive law.

For all these reasons I am of opinion that the Meat Supply Act is not obnoxious to sec. 92 of the Constitution and is valid, and that it authorized all the acts complained of which were committed before action brought.

Numerous American decisions were cited to us, but I have been unable to derive any assistance from them. They were all decisions upon the extent and operation of an artificial but accepted doctrine laid down by the Supreme Court to the effect that under the Con- stitution of the United States the power to regulate trade and commerce between the States is vested exclusively in Congress. That doctrine has no bearing upon the construction of the written Australian Constitution. But, as I pointed out during the argument, in none of these cases was it even suggested that a State cannot, with respect to things originating in the State, provide by law that they shall be incapable of being made the subjects of trade and

121 C.L.R., 357. 22 CLR 583

The question should, therefore, be answered in the affirmative.

BARTON J. The plaintiffs, as trustees and executors of the will of William Duncan, have for the last nine years held a station, stocked with cattle, called 'Mooraberrie," in Western Queensland, near the border of South Australia. The plaintiff Laura Duncan is also entitled under the will to a share in the station and stock, and since the death of William Duncan, whose widow she is has lived on and managed the station.

In May of this year the plaintiffs, who had made arrangements to forward 600 fat bullocks to Adelaide in South Australia for sale, sought from the defendant Hunter, as Acting Chief Secretary of the State, permission to send their bullocks from their run into South Australia for that purpose. The permission was refused and the sale of the bullocks was thus prevented. It is sufficient for the moment to sav of the request that it was made because the Govern- ment asserted a legal right to prevent the departure of stock. The Acting Chief Secretary informed the plaintiffs that no fat bullocks would be allowed to cross the border.

The defendants justify the conduct complained of under the provisions of a Queensland Statute, the Meat Supply for Imperial Uses Act, No. 2 of 1914. They contend that under its provisions no action lies for the matters of which complaint is made. The plain- tiffs on the other hand say that the provisions on which the defen- dants rely are in breach of sec. 92 of the Constitution of the Common- wealth.

It therefore becomes necessary in the first instance to construe those provisions of the Queensland Statute under which the defen- dants attempt to justify their acts. It is well to point out at this stage that the defendants did not before action acquire the cattle

owners. They could have done this under sec. 6 (2), which is not in question in this case, for the action complained of is not an expropriation. The defence, therefore, which they might have asserted by acting under the last-named provision is not available to them. The enactments on which they necessarily rely are secs. 6 (1) and 7.

The presumption that a Statute was enacted in good faith

22 CLR 584

OF for the purpose expressed in the title cannot control the final deter-

mination of the question whether it is not repugnant to the Con- stitution. There may be no purpose on the part of the Legislature to violate the provisions of that instrument, and yet a Statute enacted by it, under the forms of law, may by its necessary operation be destructive of rights granted or secured by the Constitution. In such case the Courts must sustain the supreme law of the land (here the Act 63 &amp;64 Vict. c. 12), by declaring the Statute uncon- stitutional and void (Minnesota v. Barber 1 ).

What then are the natural and reasonable effect and the neces- sary operation of the provisions impeached R. v. Barger (2). It is not the whole Act that is challenged only those portions which are said to be in denial or restriction of inter-State commerce.

Sec. 6 (1) declares that all stock and meat in any place in Queensland are and have become and shall remain subject to this Act, and shall be held for the purposes of and shall be kept for the disposal of His Majesty's Imperial Government in aid of the supplies for His Majesty's armies in the present war." Sec. 7 (1), which is as applicable to the enforcement of sec. 6 (1) as of any other portion of the Act, provides as follows " All persons whoso- ever, including the owners, consignors, consignees, shippers, vendors, and purchasers of stock and meat, and each of their agents, attorneys, servants, and workmen, are hereby prohibited from selling, offering for sale, disposing of, forwarding, consigning, shipping, exporting, delivering, or in any manner whatsoever dealing with any stock or meat (whether the same is or is not actually appropriated to His Majesty by an order made under this Act), except only in pursuance of and under the directions and orders of the Chief Secretary." Sub-secs. 2 and 3 are in aid of sub-sec. 1, and, like it, apply when the stock are not, as also when they are, actually appropriated to His Majesty, though an appropriation can only be made under sec. 6 (2), which does not apply to the present case.

Inasmuch as Queensland legislation applies only to that State, but does extend to the whole of it unless qualified, and inasmuch as sec. 6 (1) is expressly declared to apply to any place in Queens- land, it would be idle to deny that the effect and operation of these

1136 U.S., 313. 22 CLR 585

provisions is to keep cattle from leaving Queensland, except in H. C. pursuance and under the directions and orders of the Chief Secretary. The prohibition of "forwarding, consigning, shipping, or delivering" must include inter-State operations. It is true that sec. 4 defines the expression 'Chief Secretary " as meaning " 'the Chief Secretary of Queensland (or other Minister of the Crown for the time being discharging the duties of his office), acting for and on behalf of the Government of Queensland and His Majesty's Imperial Government." Of course, SO far as executive acts are concerned, it is the Queensland Government and no other that must exercise jurisdiction in that State (Attorney-General for New South Wales v. Williams 1 ). I dismiss the contentions raised on this definition with the observation that it cannot affect the question whether the effect of the provisions quoted is to keep the live stock in Queensland at the will of the Chief Secretary, and therefore to prevent inter-State trade in them except at his will, and that although the ownership of them remains unchanged. For, by sec. 6 (2) it is made plain that until the making of an order thereunder by the Chief Secretary or his Under Secretary stock were not to cease to be the property of their then owners. Otherwise an order under that section would not be needed to divest them of their ownership. The impeached provisions are in no wise limited SO as not to affect the removal of stock from State to State in the way of trade. It is urged that secs. 6 (1) and 7 are not to be interpreted as a direct restriction upon inter-State trade, because they apply generally to every place in Queensland and to all stock and meat therein but their generality does not affect the case. If the restriction of, or the power to restrict, inter-State trade is included, as I think it plainly is, in the direct operation of the Act, the fact that intra-State trade is also more or less affected cannot diminish the restriction. In fact, if the Legislature of Queensland could make a burden on inter-State commerce apply alike to all the people of Australia as well as the people of that State-and, indeed, it has done so even now by placing bonds on a traffic by which at least the needs of a very large proportion of the inhabitants of the Common- wealth are largely supplied-still the considerations affecting the

1(1915) A.C., 573: 19 C.L.R., 313. 22 CLR 586

case would not differ. The people of other States and the people of Queensland have equally a right to be protected against injury suffered by the enforcement of enactments of that State interfering with the freedom of commerce among the States; that is, if the interference is unconstitutional.

It is a fact SO notorious as to be the proper subject of judicial notice that the inter-State traffic in Queensland cattle is, or at any rate was, up to the passage of this Act, of immense volume. In that State are bred and owned larger numbers of cattle than in any other of Australia, and in all the Eastern States-that is, in all the States save Western Australia--there was a great and constant market for its bullocks and the beef which they yield. It may be said with truth that in all those States every resident's table and every resident's pocket are affected by a restriction of the traffic, for its result must necessarily be to diminish the supply and raise the price of beef. Up to the passage of the Act now in question Queensland cattle came down in many thousands for sale. Large numbers of them came from the distant Gulf country, travelling, in many cases, over 1,000 miles. That great market is, as we see, closed in part. We are not told more; if secs. 6 1 and 7 (1) are valid it can be closed altogether at the will of the Queensland Government, malgré the owners.

We are referred to the title of the Statute, namely, " An Act to Secure Supplies of Meat for the uses of His Majesty's Imperial Government during War, and for other purposes." But if it bears upon commerce among the States SO directly as to amount to a regulation in a relatively immediate way, it will not be saved by name or form " (Galveston, Harrisburg and San Antonio Railway Co. v. Texas (1). It is the effect that is the vital considera- tion, and that can only be ascertained from the substance of the enactment (R. v. Barger (2) ). Then it is urged that the effect upon inter-State commerce is only incidental. That contention can in no wise be accepted. The restriction of inter-State com- merce is no mere incident, but a factor of these provisions. (It is not a factor also in sec. 6 (2), under which no action was taken at any material time. There, interference with inter-State

1210 U.S., 217, at p. 227. 22 CLR 587

commerce would not be the necessary result. For the ownership and the dominion accompanying ownership would be changed.) In truth the provisions impeached would be futile in great measure if they did not include the stoppage of inter-State traffic in stock at the will of the Queensland Government through its Chief Secretary. Had the restriction been left out the Act would have been unchal- lengeable, but of poor effect indeed. The motive expressed in the title may, if the word be preferred, be called its ultimate object, but the main part of its immediate object is the withholding of cattle from transport into other States. If there had been no inter-State commerce in Queensland cattle, the supply of meat for the Imperial Government could have been secured by the mere acquisition of all or any of the live stock directly, or under some such enactment as sec. 6 (2) together with provision for taking possession of the stock after acquisition. But as the traffic existed and was great, its cessation could best be effected by such provisions as secs. 6 1 and 7 (1).

Still, if the restrictions imposed are not infringements of the Constitution, neither the plaintiffs nor anyone else can complain.

Then is the Constitution infringed ? It is the supreme law of all the States (see covering sec. V.), and sec. 92 is therefore the law of Queensland, just as it is that of any other State. On its face it is unqualified, But the defendants seek to show that it is not in- fringed if the burden imposed on inter-State commerce is not a border tax. The words "absolutely free " are said to refer only to fiscal burdens and therefore the right is claimed for a State to restrict or even prohibit inter-State trade as it pleases SO long as it abstains from placing on it any monetary charge. I am not of that opinion, but I think the learned Chief Justice interpreted the pro- vision accurately when he said last year in the Wheat Case (1) that Sec. 92 may,

so far as it relates to commerce, be para- phrased thus: Every owner of goods shall be at liberty to make such contracts for the transportation of goods from one State to another as he thinks fit without interference by law."

The narrower interpretation was sought to be supported by reference to other constitutional provisions.

120 C.L.R., 54, at p. 68. 22 CLR 588

The first such argument is founded on sec. 51 1. It is suggested that the last-mentioned sub-section cannot have any real effect unless the limitation applies otherwise it would be rendered impotent as to trade among the States." The powers given in sec. 51 1 are QUEENS-

expressed to be subject to the Constitution, and if as between the two there is to be a limitation it is to be sought rather with respect to the legislative authority of sec. 51 (1) than with respect to the absolute and unlimited terms of section 92. But I do not think it is correct to say that without the limitation of sec. 92 the commerce sub-section of sec. 51 would be impotent as to inter-State trade, for there would still be open to it in that regard the considerable field of laws facilitating inter-State commerce by way of helpful adjustment.

Sec. 112 was strongly relied on as showing that sec. 92 was confined to the prevention of fiscal burdens. Now, sec. 112 may still be given its full operation without imposing on sec. 92 the narrow meaning claimed. The latter section must on any con- struction include a prohibition of inter-State customs duties and the like, and sec. 112 to my mind plainly reads as authorizing the imposition by a State of certain charges which are not within the prohibition. Sec. 112 clearly recognizes State inspection laws as outside the prohibition. But if any attempt is made to convert them into instruments for the fettering of inter-State commerce, the deterrent provisoes that the net produce of inspection charges shall be for the use of the Commonwealth, and that the Parliament of the Commonwealth may annul such laws altogether, afford two effective safeguards. The truth is that, whether the charges are made on goods inspected as they pass into and out of the State or on goods inspected in any other part of the State, they are not taxes but merely compensation for services rendered. Speaking of the provision in the Constitution of the United States with which sec. 112 corresponds, Marshall C.J. said in Gibbons v. Ogden

1:- " The object of inspection laws, is to improve the quality of articles produced by the labour of a country to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of 19 Wheat., 1, at p. 203. 22 CLR 589

commerce among the States." Such inspection being a proper subject of State legislation, sec. 112 merely makes it clear that the States may make charges for that service even at the ports and boundaries. That is merely a question of the most convenient place at which to perform the service. There were, at the time of the adoption of the Constitution of the United States, numerous laws of this class existent in the several States, and the judgment of Blatchford J., speaking for the Supreme Court in Turner v. Mary- land 1, gives much useful information on the subject. There were similar laws in the Australian Colonies at the time of federa- tion, and their number has probably increased since. Instances are to be found in the laws for the inspection and grading of butter, an operation usually conducted at the ports before shipment. The charges referred to in sec. 112 are those imposed for such a service. Neither the laws nor the charges for the service rendered are in any sense regulations of external or inter-State trade, though they may have some remote influence on the one or the other.

It was also argued that the place given to sec. 92 in Chapter IV., Finance and Trade," was an indication that sec. 92 deals only with fiscal matters, but its inclusion of them is sufficient justifica- tion for the place it occupies. So that its place does not carry with it the implication that it relates only to such matters. Moreover, there is no other chapter in the Constitution to which it is more appropriate even on its widest construction, and none was pointed out.

A further argument was founded on the second paragraph of sec. 92. The operation of this paragraph has long been spent. Its language shows no more than that the first paragraph dealt with the subject of inter-State customs duties. But it by no means shows that it was aimed solely at such duties.

I come now to sec. 113, which appears to have received slight attention during the argument. It is of considerable importance in assisting us to arrive at the true construction of sec. 92.

When sec. 113, which obviously makes an exception to sec. 92 in the same chapter, is compared with what is called the Wilson Act, passed by the Congress of the United States in 1890 and entitled

1107 U.S., 38, at p. 51. 22 CLR 590

" An Act to limit the effect of the Regulations of Commerce between the States and with Foreign Countries in certain cases," it will be seen that the Australian section 113 and the American Act are in substance identical. Now it is important to consider the effect which the Wilson Act was to "limit," for unless there is a controlling context, which there is not, we shall presently see the effect of sec. 113 on the meaning of sec. 92. It is established by American cases too numerous and too well known to detail, that external and inter-State commerce being there regarded as a subject of national character, requiring uniformity of regulation, Congress alone can deal with such transportation; that its non-action is a declaration that such commerce shall remain free from burdens imposed by State legislation. Otherwise there would be no protection against conflicting regulations of different States. each legislating in favour of its own citizens and products, and against those of other States." It is not to the purpose to inquire whether the American decisions in this matter are well founded. Congress has preserved the policy of non-interference with inter-State trade hence the Supreme Court has consistently upheld the doctrine that no State can impose restrictions, whether fiscal or other, by legislation or otherwise, with the effect of substantially interfering with that commerce. So that the Supreme Court of the United States interprets the freedom of inter-State commerce, SO far as State legislation would affect it, precisely as the learned Chief Justice interpreted sec. 92 in the Wheat Case 1. (Of course external commerce is constitutionally dealt with by the joint operation of secs. 90 and 51 (1). As to that we are not at present concerned. External commerce however was dealt with on lines consistent with the creation of one national authority in relation to the outside world while inter-State com- merce was made the subject of a charter which for the purposes of that commerce eliminates the very idea of State boundaries, and makes the people of the whole Commonwealth in their commercial and personal dealings with each other, "absclutely" one.) As Taney C.J. remarked in the Licence Cases 2: articles "universally admitted to be subjects of ownership and property

are therefore subjects of exchange, barter, and traffic, like any other commodity in which

120 C.L.R., at p. 68. 25 How., 504, at p. 577. 22 CLR 591

Sec. 92 declares that " 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." The defendants contended that doubt as to the proper

1(1891) A.C., 455. 22 CLR 644

OF interpretation of the words "absolutely free" in sec. 92 is neces-

sarily caused because of sec. 51 (I.) giving the Commonwealth power to make laws with respect to inter-State trade and commerce, which includes a power to regulate the very trade and commerce referred to QUEENS-

in sec. 92, and because of sec. 112, which gives the States a very qualified right to demand fees under inspection laws of the States Powers J.

on goods entering any State from another State. Secs. 99, 100 and 102 have also been referred to, to show that some qualification must be placed on the words absolutely free " in sec. 92. The defendants further contended that sec. 92 could only be interpreted in one way

SO as to give full effect to the words "absolutely free and make all parts of the Constitution consistent, namely, by qualifying the words and holding that the section only prohibited the State and the Commonwealth from imposing financial burdens or charges on persons or goods passing from one State to another. It was admitted that if that was the true construction the States retained the power to interfere with, or even to prohibit, inter-State trade in any way except by the imposition of border duties or other financial burdens. The learned Chief Justice and my brother Higgins have dealt very fully with these two contentions in the judgments just delivered.

Sec. 90 of the Constitution, as has been pointed out, prevented the States from continuing to interfere with or prohibit inter-State trade or commerce by duties of customs, bounties, &amp;. SO that sec. 92 was not necessary to prevent interference in that way. I agree that sec. 92 was not intended to make trade, commerce and inter- course among the States free from interference by means of the imposition of fiscal burdens only. Such an interpretation of the section would permit any State to pass legislation with the express purpose of prohibiting inter-State trade and commerce. Whether sec. 92 was intended to bind the Commonwealth as well as the States, it is not now necessary to decide. The acts complained of have been done by a State.

The Constitution must be read as a whole, and in my opinion the words "absolutely free " in sec. 92 mean free from any restriction not authorized by the Constitution itself-that is, by any express restriction contained in the Constitution, or by the lawful exercise of any power granted to the Commonwealth or retained by the

22 CLR 645

States. Whatever the true construction to be placed on sec. 92 OF may be, I hold that no State has the power to prevent trade and commerce among the States in marketable commodities which the owner in any one State is qualified to sell, and is at liberty to sell and dispose of, in that State. As my brother Higgins puts it 1:

Whoever has power

to sell any specific cattle shall not be obstructed or hindered" by any State "from sending them across the border of his State for sale or after sale. There is to be no obstruction or restriction because of State boundaries; State boundaries are to be forgotten for the purpose of" inter-State "trade, commerce or intercourse."

If all the acts authorized by the Queensland Government, and by the circulars and directions issued by the Chief Secretary and his Under Secretary since the passing of the Act, referred to by my brother Isaacs, could properly be used to show that the Act when passed was substantially an Act to prohibit inter-State trade, the answer of this Court to the first question would probably have been different.

The Government officials did notify to the plaintiffs that the fat cattle in question would not be allowed to cross the border of Queens- land into another State, but all that was necessary under the Act was to notify the plaintiffs that the cattle were only held by them 'for the purposes of and kept for the disposal of His Majesty's Imperial Government in aid of the supplies for His Majesty's armies in the present war (sec. 6)-that His Majesty had the right to take the cattle whenever they were required for those purposes, and that they were prohibited by the "Act" from selling, or dealing with them, forwarding them, or sending them from the place where they were depastured, except by and under the directions and orders of the Chief Secretary for Queensland. It was also proved that the owners in Queensland of cattle subject to the Act were permitted in the year 1915 to sell, or deal with, or forward their cattle to any part of Queensland and that the State Government did prevent cattle-including even dairy cattle which were not included in the Act-being sent across the State borders.

The Act in question may have been used for a wrong purpose, but this Court, in deciding whether the Act is valid, must ascertain

1Ante, p. 630. 22 CLR 646

C. OF by reference to the words used in the Act itself what Parliament

meant in passing the Act. As Lord Brougham said in Fordyce V. Bridges 1: " 'We must construe this Statute by what appears to have been the intention of the Legislature. But we must ascertain that intention from the words of the Statute, and not from any general inferences to be drawn from the nature of the objects dealt with by the Statute." Lord Coleridge, in Pocock v. Pickering 2, said: "In construing an Act of Parliament, our first business, I conceive, is to examine the words themselves which are used and, if in these there be no ambiguity, it is seldom desirable to go further." Neither the abuse of a power nor its consequences, nor any purpose, or motive, or object of the Legislature, not found in the Act, can render the exercise of a legislative power illegal (R. v. Barger 3 ). If the Act contained a proviso that the provisions of sec. 6 and sec. 7 (1), (2) and (3) were only to be used to prevent cattle being sent across the Queensland border into South Australia or New South Wales, this Court would, if it followed Barger's Case, be justified in holding that the Act was substantially passed to prevent inter-State trade in cattle and not to secure supplies for the Imperial troops, and holding that it was invalid.

It will not be denied that a State could place a tax of £10 on every head of cattle in the State. If it said in the Act that the tax would only be payable on cattle passing or being shipped from the State to another State, the Act would probably be held to be bad because on the face of it, in substance, it was not for "taxation," but in reality to prevent or restrict inter-State trade in cattle. If, however, the Act merely imposed a tax of £10 on all cattle, and declared that cattle could not be moved or sold by the persons owning them at the time the tax was imposed before payment of the tax, that would prevent inter-State trade in cattle without being a contravention of sec. 92. If any Government unfairly collected the tax only on cattle passing or being shipped to another State, I do not see how the Act could be held to be bad because on the face of it it was not passed to prevent inter-State trade.

Looking at the Act itself, I do not find any words in it which

11 H.L.C., 1, at p. 4. 218 Q.B., 789, at p. 797. 36 C.L.R., 41. 22 CLR 647

show that it is in substance anything more than an Act to secure H. supplies of Queensland meat for the uses of His Majesty's Imperial Government during the War, to declare the method of securing those supplies, and to provide for payment for any cattle required by His Majesty, with power to extend the operation of the Act to other food supplies and property in Queensland.

It was contended by the plaintiff (a) that the Act was passed to prevent inter-State trade in Queensland cattle (b) that that was the real object of the Act (c) that that object was disclosed by the Act itself and (d) that it was necessary to stop inter-State traffic in cattle to carry out the provisions of the Act. I do not find any- thing in the Act or in the surrounding circumstances to warrant such a conclusion. On the contrary, the Act was passed in August 1914, a few days after the declaration of war, after the receipt of important cablegrams from England (exhibits in the case). Even then, by sec. 2, the Act was only to come into force during such period as the Governor in Council declared from time to time. This Act, passed, SO it is said, to prevent inter-State trade in cattle, was allowed to remain a dead letter for nearly six months; and it was only on the receipt of urgent cablegrams from the Imperial Govern- ment early in 1915 that a Proclamation, declaring the Act to be in force for six months, was published, namely, on 2nd February 1915. The necessity to continue to supply meat for His Majesty's Imperial troops has caused the periods for which the Act was to be in force to be extended from time to time.

Queensland, as the learned Chief Justice points out, is recognized as the principal cattle-producing State in the Commonwealth. As the Chief Justice pointed out, the meat-exporting companies in Queensland, at the time the Act was passed and for many years prior thereto, were exporting millions of pounds weight of meat to foreign countries, including Germany, Italy, Japan, Hong Kong, Philippine Islands and the United States. It is also well known that the States of New South Wales and South Australia (the two States adjoining Queensland) in 1913 and 1914 were exporting tinned or frozen meat to foreign countries. Parliament might well think that an Act, such as the Queensland Meat Supply Act in question, was necessary to prevent the export of meat from Queensland to foreign

22 CLR 648

countries, and to secure the supplies for His Majesty's Imperial

Forces only, during the War, for the benefit of Queensland and the Empire as a whole, and not to prevent fat cattle being sent across the Queensland border.

A similar Act was passed in the State of New South Wales (the next important cattle-producing State) in the month of February 1915, shortly after the date of the Queensland Proclamation. It appears to me that it is as unreasonable to say that that Act was passed to prevent inter-State trade in cattle with Queensland as to say that the Queensland Act was passed to prevent inter-State trade in cattle with New South Wales. If cattle had been taken across the border from Queensland into New South Wales the new owner in New South Wales would have found himself subject to a similar law in New South Wales.

It should also be remembered that the Act in question expressly prohibits owners of cattle subject to the Act exporting cattle or meat. The word "exporting" since federation has been used only with respect to exports beyond the Commonwealth. The State had the power to deal with exports at the date of the estab- lishment of the Commonwealth. That power is not interfered with by sec. 92. That power continues in the State under the Constitu- tion (sec. 107) subject to the power of the Federal Parliament to pass a law inconsistent with the State law, in which case the " law of the Commonwealth shall prevail' (sec. 109).

Assuming that I am correct in holding that the Queensland Meat Supply Act is valid SO far as it applies to persons and property in Queensland, the only questions left for consideration are: (1) whether a State can, notwithstanding sec. 92, by any law prevent or prohibit residents in Queensland who own cattle at the time the law is passed from selling those cattle to anyone but His Majesty during the War, or during such time as Parliament deems fit, even if the person who owned them before the Act was passed desires to sell them to persons in another State (2) whether that can be done by requiring the persons mentioned to hold them to the use of His Majesty's Imperial Government, and to keep them for his use pending an order to be made at any time making any or all of such cattle the absolute property of His Majesty; and in the meantime

22 CLR 649

to prohibit the removal or sale of the cattle from the place or places where they are being depastured (see interpretation clause) without the consent of the Chief Secretary for Queensland, acting for the Imperial Government and for the State Government. That depends on the two questions (1) whether sec. 92 of the Constitution prevents a State exercising its right to make such laws as it thinks fit affecting the rights of property within its borders, if such a law incidentally prevents inter-State trade and (2) whether this Act did lawfully prevent owners of cattle, at the date the Act was passed, dealing with fat cattle except with the consent of the Chief Secretary for Queensland acting for the Imperial Government and for the State of Queensland.

As to the first question-sec. 107 of the Constitution declares that " every power of the Parliament of a Colony which has become

a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Com- monwealth." The Parliament of Queensland at the establishment of the Commonwealth had the power to authorize the Crown to acquire any property or any interest or right in property with or without pay- ing compensation. It had the power to tax property or residents in the State to any extent it thought fit. It had the power to say who should or should not be qualified to hold real or personal estate in Queensland, and who should or should not be able to sell it. It had the power to say on what conditions property could be held or used, and it had the power to prevent any owner of cattle from removing cattle from his holding without the consent of an officer of the Government. None of those powers have been exclusively vested in the Parliament of the Commonwealth or withdrawn from the State, and I hold that those powers can still be exercised by the State even if the effect of the exercise of them does incidentally hinder or prevent some inter-State trade or commerce. The framers of the Constitution apparently did not anticipate, or think it neces- sary to prevent, the exercise of the sovereign powers of the State being used to the extent they have been in the direction of socialism or of the State acquisition and control of marketable commodities.

22 CLR 650

This Court has already held in the Wheat Case 1 that the State of New South Wales could compulsorily acquire all the marketable wheat in New South Wales, although a large portion of it, prior to the compulsory acquisition, was admittedly intended for inter-State QUEENS

trade and commerce. The change of ownership did not prevent inter-State trade or commerce because the new owner (the State) did not wish to engage in inter-State trade or commerce. Inter- State trade was just as free to all owners of property who desired to engage in such trade or commerce and were capable of doing so.

The State of South Australia is dependent altogether on the State of New South Wales for its coal supply. Victoria is to a great extent also dependent on New South Wales for its coal. All the other States import some New South Wales coal, and the shipping companies (except in the State of Queensland) depend almost wholly on New South Wales coal. It is a marketable commodity, and the greater part of the coal raised in New South Wales is used for inter-State purposes. Yet the State of New South Wales can legislate as to all mines in the State. It could make labour conditions

SO oppressive that they would prevent the owners working the coal mines it could order all employers to pay their employees £1 a day for six hours' work on six days in the week, and in that way prevent many of the mines being worked at all it could tax all coal raised to such an extent that it would be unprofitable to work the mines. It is admitted that it could acquire all the mines, or all the coal as it is raised; and in all the ways mentioned prevent or interfere with inter-State trade without any contravention of sec. 92.

The power of a State to pass any legislation necessary to protect the health or safety of the people of the State has never been ques- tioned, however seriously the exercise of the power may incidentally affect inter-State commerce, or even if it prohibits it.

In the United States the right to regulate inter-State trade is exclusively vested in Congress, but the United States Constitution does not contain any section similar to sec. 107 of the Australian Constitution. The power of the States to pass legislation to prevent the manufacture of goods intended for inter-State trade, and to prevent the sale of such goods if manufactured, has been upheld

120 C.L.R., 54. 22 CLR 651

by the United States Federal Courts in many of the cases referred to during the argument; but no cases have been quoted or referred to by my brothers Barton and Isaacs in their judgments in which the right of the State to pass any law affecting property produced in the States has ever been successfully challenged in the United States Federal Courts.

I do not see how sec. 92 is contravened by the State placing new qualifications or prohibitions on residents in the State, or on property in the State, SO long as the property in the hands of the owners who are qualified to sell and deliver it inter-State is free from inter- ference. Sec. 92 did not give to persons in all the States under twenty-one years of age, or to lunatics, a right to sell goods inter- State; if the laws in force in a State rendered them incapable of selling any property at that time, sec. 92 did not authorize them to sell inter-State. The State law, by disqualifying the persons mentioned, did not place any restriction on inter-State trade or commerce within the meaning of sec. 92 the State only exercised its power to deal with the rights to property.

The disqualifications mentioned here are caused by a State law which the State had power to pass. In the same way intercourse among the States can be prevented by the imprisonment of those who break State laws, by requiring the attendance of witnesses at Court, by locking up lunatics, by quarantining persons with infectious diseases, and in many other ways. State laws can incidentally prevent intercourse, trade and commerce being free for persons and goods by the exercise of powers expressly retained by the States under sec. 107 of the Constitution, and in that way only.

If the State can compulsorily acquire, or even confiscate property, which is admitted, I see no reason why a State cannot place limits on the rights of residents of a State to deal with real or personal property produced in the State; and /or suspend for any time it thinks fit, in the public interests, the power to sell any commodity produced in the State. For instance, a State could, in my opinion, prevent the sale of any female cattle in a State SO as to secure a continuation of the supply of cattle for its people. That would prevent the sale of female cattle to persons in other States, but it would not, I think, be a contravention of sec. 92.

22 CLR 652

Once it is conceded that the States retained the power to deal with the rights of property, the only question left is whether this Act, the Queensland Meat Supply Act, has disqualified the persons resident in Queensland owning cattle fit for export or which may be made available for export from selling or disposing, &amp;., of their cattle except in the way provided by the Act. I think it has done SO very clearly by sec. 6 (1) and (2) and sec. 7 (1), (2) and (3). The capacity of disposition is one of the usual incidents of the ownership of property, and is subject to the laws of the State in which the property is situated. The Act deprives the owner of the right or capacity of free disposition. The Act sets aside or dedicates or places in trust for the public purposes-the defence of the State and Empire--the stock and meat referred to in the Act, and takes away the power of the then owner to sell except on the terms and conditions set out in the Act. The right of dominion over the property, except under the conditions set out in the Act, is taken awav.

The sections were clearly intended to take away, and did take away, any right the then owner had to sell or move any cattle referred to in the Act, namely, fat cattle or cattle available for export in Queensland, except in accordance with the Act. The Act may, and apparently does, incidentally prevent inter-State trade in cattle to some extent, but that interference is incidental, and is caused by an Act the States can lawfully pass under the powers reserved to the States by sec. 107 of the Constitution, without contravening sec. 92.

For the reasons I have mentioned I agree that (1) sec. 92 does not confer any new right of property, but only prohibits the placing of any new restrictions by the States on persons lawfully engaged in inter-State trade, commerce or intercourse: (2) sec. 7 (1), (2) and (3) makes the act of removing the cattle in question from the plaintiffs' property, without the consent of the Chief Secretary, unlawful; (3) the acts which the plaintiffs proposed to do would have been unlawful if done without the consent of the Chief Secretary, and that consent was refused. No action would therefore lie for damage for preventing the removal of the cattle if the plaintiff was prevented from removing them under and in accordance with the provisions of the Queensland Meat Supply Act.

22 CLR 653

The decision of this Court in June last in Foggitt, Jones &amp;Co. v. H. C. New South Wales 1, on the Act passed in New South Wales in February 1915, is inconsistent with the conclusion I have arrived at; but the Full Bench of seven Justices has been asked to recon- sider that decision. Three of the five Justices who sat in that case, including the learned Chief Justice, have come to the conclusion that the decision in Foggitt, Jones &amp;Co.'s Case was wrong. I have come to the same conclusion, and I concur in overruling the judgment in that case.

I recognize the possible effect of the interpretation placed on sec. 107. Many of the Commonwealth powers can be incidentally affected or even rendered inoperative by the sovereign power of the States to acquire property, or by the power of the States to modify or qualify the capacity of persons holding property, or to prevent the manufacture or sale of goods produced in the States. This Court has, however, to interpret the Constitution as it finds it. Lord Blackburn in River Wear Commissioners v. Adamson 2 said: "It is to be borne in mind that the office of the Judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the Court injudicious."

I hold that the Queensland Meat Supply for Imperial Uses Act 1914 is valid.

For all the reasons mentioned, I think the answer to question 1 is: Yes; the Act in question is valid, and it authorized the refusal before action brought of the application by the plaintiffs to take fat cattle from their station in Queensland to South Australia or anywhere else.

The first question answered in the affirmative. Solicitors for the plaintiffs, Fitzgerald &amp;Walsh, Brisbane, by Dillon &amp;Nichols.

Solicitor for the defendants, T. W. McCawley, Crown Solicitor for Queensland.

Solicitor for the Commonwealth, Gordon H. Castle, Crown Solicitor for the Commonwealth.

121 C.L.R., 357. 22 App. Cas., 743, at p. 764.