Fish Board v Paradiso

The case of *Fish Board v Paradiso* involved a complaint laid by the Fish Board against Sam Paradiso for selling fish in Queensland without it first being brought to a market and sold under the direction of the Board, contrary to section 27(1) of *The Fish Supply Management Acts 1935 to 1951* (Q.). The matter was removed into the High Court of Australia on the grounds that it involved the interpretation of section 92 of the Commonwealth Constitution, which guarantees freedom of trade, commerce, and intercourse among the States. Paradiso, the defendant, was a retail fish shop proprietor who had purchased fish from a New South Wales supplier, which was then transported to Queensland and delivered to him.

The High Court was required to determine whether section 27(1) of the Queensland Act, by requiring fish to be sold at a Board-conducted market before being sold by a retailer, infringed section 92 of the Constitution. Specifically, the Court had to consider whether the provision imposed a burden on inter-State trade by preventing a purchaser of fish in the course of inter-State commerce from dealing with it upon its delivery in Queensland, other than by placing it at the disposal of the Board.

A majority of the Court, comprising Dixon C.J., Williams, Webb, Fullagar, Kitto, and Taylor JJ., held that section 27(1) of the Queensland Act, in its application to fish brought into Queensland in the course of inter-State trade, had an immediate and direct impact upon that trade. The Court reasoned that the provision, by compelling the purchaser to place their property at the disposition of the Board for sale, effectively prohibited the retailer from selling the fish unless it first went through the Board's market. This restriction, regardless of whether it was framed as a prohibition or a conditional liberty, was found to constitute an infringement of section 92 of the Constitution. McTiernan J., however, expressed no opinion on the constitutional question, finding that the relevant section of the Act was not intended to apply to fish from external sources and therefore the prosecution should fail on that basis.

The High Court ordered that the complaint be dismissed and that the costs of the defendant in both the court of petty sessions and the High Court be paid by the complainant Board.