Elliott v The Commonwealth - [1936] HCA 7

[ ] ELLIOTT

THE COMMONWEALTH OF AUSTRALIA

DEFENDANTS.

AND ANOTHER Constitutional Law (Cth.)-Regulation of trade and commerce-Preference to State

or part thereof over another State or part thereof-SeamenLicences-Prescribed ports-Prescribed ports in four States, no prescribed ports in two States-Validity of regulations-The Constitution (63 &64 Vict. c. 12), sec. 99-Transport Workers Act 1928-1929 (No. 37 of 1928-No. 3 of 1929)-Transport Workers (Seamen) Regulations (S.R. 1935, No. 125).

The Transport Workers (Seamen) Regulations provide a system for licensing seamen which is applicable only at ports in the Commonwealth specified by notice in the Gazette by the Minister as ports in respect of which licensing officers shall be appointed. Unlicensed persons may not engage or be engaged as seamen at ports SO specified. The Minister specified certain ports in four and McTiernan States, but no ports were specified in two States.

Held, by Latham C.J., Rich, Starke and McTiernan JJ. (Dixon and Evatt JJ. dissenting), that the regulations and the specification of ports thereunder did not give preference to any State or part thereof over another State or part thereof within the meaning of sec. 99 of the Constitution.

Per Latham C.J.: The discrimen which sec. 99 forbids the Commonwealth to select is not merely locality as such, but localities which for the purpose of applying the discrimen are taken as States or parts of States.

Per Dixon J. :-What is forbidden by sec. 99 is, in a matter of advantage to trade or commerce, the putting of one State or part of a State before another State or part thereof. But the section does not call upon the Court to estimate the total amount of economic or commercial advantage which does or will actually ensue from the law or regulation of trade or commerce it is enough that the law or regulation is designed to produce some tangible advantage

54 CLR 658

obtainable in the course of trading or commercial operations, or some material or sensible benefit of a commercial or trading character.

Per Ematt J. :-Sec. 99 forbids laws or regulations which accord preferential treatment to persons or things as a consequence of local situation in any part of the six States, regardless of all other circumstances. The section is not infringed if the preferential treatment is a consequence of a number of circum- stances, including the circumstance of locality. It operates objectively in the sense that the purpose or motive of the Legislature or Executive in giving preference by a law of commerce or revenue is not a relevant question. It may apply although the legislation or regulations contain no mention of a State en nomine. To prove infringement of the section it is not sufficient to show discrimination based on mere locality it must also be shown that, as a consequence of the discrimination, tangible benefits, advantages, facilities or immunities are given to persons or corporations.

Crowe v. The Commonwealth, (1935) 54 C.L.R. 69, referred to.

MOTION for injunction.

The plaintiff, Eliot Valens Elliott, of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Elliott v The Commonwealth and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1936] HCA 7
Decision Date: 6 March 1936

CaseChat Overview and Summary

The case of *Elliott v The Commonwealth* involved a seaman, Eliot Valens Elliott, challenging the validity of the Transport Workers Act 1928-1929 and its associated regulations. Elliott argued that these provisions prevented him from working as a seaman unless he obtained a licence and paid a fee, and that this system was invalid. The dispute centred on whether the regulations, which applied licensing requirements only at specified ports in certain states, contravened section 99 of the Australian Constitution. The matter was heard by the High Court of Australia.

The primary legal issue before the Court was whether the Transport Workers (Seamen) Regulations, by specifying certain ports in four states as subject to licensing requirements while leaving ports in two other states unregulated, gave a preference to one State or part of a State over another State or part of a State, thereby contravening section 99 of the Constitution. Section 99 prohibits the Commonwealth from giving such a preference through any law or regulation of trade, commerce, or revenue.

A majority of the High Court, comprising Latham C.J., Rich, Starke, and McTiernan JJ., held that the regulations and the specification of ports did not violate section 99. Their reasoning focused on the interpretation of "preference" within the constitutional provision. The majority considered that a mere difference in the application of the law based on locality did not automatically constitute a prohibited preference. Instead, they reasoned that a tangible commercial advantage or a material, sensible benefit of a commercial or trading character must be conferred upon one State or part of a State over another. The Court found that the vagueness in identifying who received the alleged preference and the nature of that preference made it impossible to conclude that a tangible commercial advantage, as required by section 99, had been established. Dixon and Evatt JJ. dissented, offering differing interpretations of what constitutes a preference under section 99, with Evatt J. suggesting that preferential treatment as a consequence of local situation, regardless of other circumstances, could infringe the section.

Orders