Graham v Paterson
[1950] HCA 9
•15 May 1950
Cons
R V Fukusnto ^2003] 1 QdR
REPORTS OF CASES
DETERMINED IN THE
HIGH COUHT OF AUSTRALIA
[HIGH COURT OF AUSTRALIA.]
GRAHAM AND ANOTHERAppellants
;
Defendants,
.VND
PATERSON ..
Respondent.
Complainant,
Constitutional Law—Freedom of inter-State tradfi and commerce—Fixation by
H. C. OF A.
a State of maximum price—Purchased in one State consumed in another State
1950.
—Matters—“ Referred ” by State to Commonwealth—Exercise of powers by
Commonwealth—Concurrent or exclusive—State and Commonwealth legislation
Sydney,
—Inconsistency—Special provision in State legislation—Reference of matters—
April 21, 24;
State legislation—Terminaiion or repeal in whole or in part—Special provision May
15.
—Subsequent State legislation—Conflict with “ reference ” statute—The Con
Latham C..T.. McTiernaii,
stitution (63 & 64 Viet. c. 12), ss. .51 (xxxvii.), 52, 92, 106, 107, 109—The Com
Williams,
monwealth Powers Act of 1943 (Q.) (7 Geo. VI. No. 19), ss. 3, 4—The Profiteering
Webb and
| piillagar J.I, |
Prevention Act of 1948 (Q.) (12 t/eo. VI. No. 34), ss. 2, 43.
■
Section 43 of The Profiteering Prevention Act of 1948 provides that a person shall not sell any declared goods at a greater price than the maximum price fixed in relation thereto by or under the Act for the sale of those goods. Sec tion 2 of the Act provides (inter alia) “ (1) This Act . . . shall bo read and construed so as not to exceed the legislative power of the State to the intent that where any enactment contained in this Act . . . would but for this section be construed as being in excess of that power, it shall never theless be a valid enactment ... to the extent to which it is not in excess of that yjower. (2) (a) That if any enactment of this Act is inconsistent with the Commonwealth of Australia Constitution Act . . . that enact-
HIGH COURT
I[. C. OK A. incnt . . . slia.li iu;vcrfclicle.s.s operate to the full extent to which it can
1950.operate eoiwistently with the Commonwealth oi' Australia Constitution Act."
GuahasiHeld (1) that in relation to a sale of goods that had no inter-State element The. Projileering I’revenl.ion Act of 194S is valid. (2) The fact that goods
1’ATEHS(.I\.sohl across the countei' in one State, might bo taken across the border to
anothei' State did not necessarily constitute an intru'-Stato transaction to
which s. 92 of the (Constitution a])pliod.
Per Latham C.J., Well) and Fullagar J.J. 'Phe Court will not decide an allegation of infringement against .s. 92 of the Con.stitution unless it is necessary to do so foi’ the purpose of determining a particular case before the (lourt.
'file reference b'̂ a State Parliament of a matter to the Commonwealth Parliament under s. 51 (xx.xvii.) of the Constitution does not deprive the State Parliament of the power of makdng laws with i-espect to that matter.
Order
Nisi
to
Review.
Upon the complaint of Korman Robert Paterson, a clerk in the office of the Commissioner of Prices for Queensland, Charles Graham and Prank Alcehurst, partners in a bakery business carried on by them at Griffith Street, Coolangatta, Queensland, were convicted in a court of petty sessions that on 11th February 1949 they contravened the provisions of s. 43 of The Profiteering Preven tion Act of 1948 (Q.) in that they “ did sell by offering for sale
a standard loaf of bread at a price of eightpence such price being a greater price than the maximum price of sevenpence halfpenny fixed in relation thereto under the Act. Each of the defendants was ordered to pay a fine of £1 10s. and to pay costs and expenses or, in default, was ordered to be imprisoned for one month.
An investigating officer formerly employed by the Commissioner of Prices said that on 11th February 1949 he entered the defendants’ bread and cake shop in Griffith Street, opposite the railway station! at Coolangatta and after a conversation “ with ” a young lady “ behind the counter ‘‘ she jfiaced a loaf of bread on the counter for which the witness tendered the sum of one shilling and received fourpence change. The defendants told him that he had been correctly charged and that they had been told about ten or eleven weeks previously by the former owner, that the price of bread in Coolangatta was eightpence for a two-pound loaf and that they had just carried on at that price.
In cross-examination the witness said he had neither weighed the loaf of bread nor had it analysed. The defendants’ shop was in close proximity to the border of New South Wales. When he, the witness, w'as actually buying the bread there was nothing to indicate that he was a resident of Queensland, and so far as the
81 C.L.R.]OF AUSTRALIA.
3
seller of the bread was concerned, he could have been a resident of
H. C. OF A.
New South Wales.
19.o0.
On nth February 1949, the maximum price fixed by Prices Order (No. 7) made under the Act, for the sale by retail ex-shop within
Graha:^
V.
Patisrson,
three miles from the post office at Coolangatta of a standard loaf of bread weighing two pounds was the price of sevenpence half penny. The border of New South Wales was within three miles from the Coolangatta post office.
Evidence given on behalf of the defendants was that the loaf of bread in question “ would easily be an ounce over two pounds.'’ The practice was that when the defendants’ stock of bread was insufficient they would buy bread from bakers at Tweed Heads on the New South Wales side of the border at sevenpence halfpenny per loaf—the fixed maximum price in New South Wales being eightpence per loaf—and resell it to the defendants’ customers. In similar circumstances, bread was bought from the defendants by bakers of Tweed Heads for resale to their customers.
Upon the application of the defendants Webb J. granted an order nisi to review' the matter by the Full Court of the High Court on the followdng grounds :—
1. The said convictions and orders were contrary to law.
2. The Profiteering Prevention Act of 1948 was ultra vires the
Parliament of Queensland and invalid—in that the Parliament of
Queensland referred “ the matter of profiteering and prices ” to the
Parliament of the Commonwealth by The Commonwealth Poivers Act
of 194.3 and at all material times thereafter had no power to pass
The Profiteering Prevention Act of 1948.
3. (a) The Profiteering Prevention Act of 1948 ŵas ultra vires the Parliament of Queensland and invalid in that it was contrary to
s.
Profiteering Prevention Act of 1948 was ultra vires the commissioner and invalid in that it wms contrary to s. 92 of the Common’wealth Constitution.
92 of the Commonwealth Constitution.
(c) The Profiteering Prevention Act of 1948 and Order No. 7 were ultra vires the Parliament of Queensland and the Commissioner of Prices respectively—(i) in so far as they purported to restrict the offering for sale of bread in that such restriction was contrary to s. 92 of the Commonwealth Constitution ; (ii) in so far as they purported to restrict the offering for sale of bread by the defendants at their premises at Coolangatta in that such restriction was contrary to s. 92 of the Commonwealth Constitution.
HIGH COUUT
[1950.
U. C. i)i- A. I. Tliilt tlie evidence did not establish the oii'ence charged and i !).■>().did not support the convictions and orders in that there was not
GllAllA Many evidence (rr) as to what was “ a standard loaf of bread ” in
r.
tlie words of the complaint; (/>) as to the maximum fixed price of
I’AT HR.SDK.
a, loaf of brearl ” ; (c) of any “ oll'ering for sale ” within the mean ing of The Profiteering Prevention Act of 1948; and {<!) of any ■' sale ” either by retail or wholesale within the meaning of that Act.
0. That the evidence did not disclose any offence.
The relevant statutory provisions are sufficiently set forth in the judgments hereunder.
C. G. Wanstall, for the ajapellants. Under s. 39 (2) of the Judiciary Act 1903-1948 the magistrate had jurisdiction in matters referred to in s. 30 including matters involving an interpretation of the Commonwealth Constitution, and an appeal from his decision lies to this Court {Roberts v. Ahern (1) ). An appeal also lies under
s. 73 of the Constitution.
The Profiteering Prevention Act of 1948
(Q.) is idtra vires and invalid by reason of (i) The Cornmonwealth Powers Act of 1943 (Q.) and earlier statutes'of the Commonwealth Parliament; (ii) s. 92 of the Constitution. Alternatively, the Act and the prices order made under it are invalid to the extent that they purport to prevent offering for sale. The Act and the said prices order are specifically invalid in their application to the appellants in the conduct and operation of their business and the subject transaction. Described generally, The Profiteermg Preven tion Act is one which deals with trade, commerce and intercourse directly and immediately, and is concerned with the sale and pur chase of goods {Duncan v. Vizzard (2) ; 0. Gilpin Ltd. v. Commis sioner for Road Transport and Tramways (N.S.W.) (3) ). The Act is a component part of a general scheme of uniform action being taken by the Commonwealth and all of the States. The charge against the appellants was confined to a charge that they offered for sale. The evidence shows that there was a sale with their authority but that that sale was the result of an offer made by the inspector, and no ofiur was ever made by the appellants. There was only an acceptance by the appellants of an offer made by the inspector. The provision in s. 43 (6) of the Act relating to “ furnishing a quotation ” is a general provision relating to the furnishing of quotations in relation to all sales, and, regarded as one of the concomitants of inter-State transactions, is invalid under s. 92 of the Constitution in relation to inter-State sales, or the furnishing
(!) (1904) ] C.L.R. 400.(3) (1935) 52 C.L.R. 189.
(2) (193.5) 53 C.L.H. 493.
81 C.L.R.]OF AUSTRALIA.
5
of quotations in relation to inter-State transactions. It was not
H. C. OF A.
possible, notwithstanding the “ severability ” provision, to construe
1950.
the Act as being valid in its application to other than inter-State
Gk,\ha-M
matters. The furnishing of the quotation was in general terms
V.
and was not related to the subject loaf of bread. The onus was on
Pateb.sox.
the Crown to show that there was an offer for sale by the appellants. Two general propositions are : (i) that the regulation of trade, commerce and intercourse among the States is compatible with its absolute freedom, and (ii) that s. 92 of the Constitution is violated only when a legislative or executive act operates to restrict such trade, commerce and intercourse directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote {The Commonwealth v. Banli of Neiv South Wales (1) ). To be permitted, regulations must be truly and essentially regulatory in character. Whether a con trol be truly regulatory, and therefore permitted, or whether it be an unlawful burden or impediment depends on the facts. An Act which operates according to the natural meaning of its words to authorize a restriction on inter-State trade is directed at inter-State trade as such {The Commonwealth v. Bank of New South Wales (2) ). In many judgments this Court did not advert to s. 92 as a ground of invalidity, or consider whether it did invalidate the Commonwealth prices control.
[Latham C.J. referred to Stenhouse v. Coleman (3).]
Price control is not regulatory but is a general marketing restric
tion.
[McTiebnan J. referred to W. d A. McArthur Ltd. v. Queens land (4).]
The particular transaction in that case was wrongly held to be an act in inter-State trade {James v. The Commonivealth (5) ). The judgment in The Commonwealth v. Bank of New South Wales (1) extends the application of the “ frontier ” test. The definition of “ sale ” in The Profiteering Prevention Act of 1920 considered in W. (& A. McArthur Ltd. v. Queensland (4) was practically the common-law dehnition of that word, and differs very much from the definition of that word in the 1948 Act: this dominates the whole construction of the Act. The definition strikes at the very feature that was distinguished in Roughley v. New South Wales (6), that is, the sending from another State for sale. Questions of severability arise only after the Court has considered the validity
(1) (1950) A.C.235; (1949) 79
(4) (1920) 28 C.L.R. 530.
C.L.R. 497.(5) (1936) A.C, 578, at p. 629;
55
(2) (1950) A.C. 235, at ])]). 310, 311 ;
C.L.R. 1, at p. 57.
(1949) 79 C.L.R., at pp. (!40, 641.
(6) (1928) 42 C.L.R. 102.
(3) (19441 69 C.L.R. 457.
HIGH COURT
[1950.
11. (!. OK A.
of euch provision according to its terms construed in tlieir context
liloO.
(Bank of New South Wales v. The Commonwealth, (I) ). The question is whether, after the extent to which the intended operation of the
V.enactment is invalid has been ascertained, it is nevertheless the
I'.'VI'HKSON,
tlie express intention of the legislature that the whole or any part of the rest of the intended operation should take effect by itself as a law {Bank of New South Wales v. The Commonwealth (2) ). Assum ing that the Act is too wndely expressed, so as to operate on all trade including inter-State trade, should it be so read down in its operation as to so much of the subject as it is competent for the legislature to deal with ? Normally, in the absence of such a provision as s. 2 (2) of the Act, the presumption is against severability [Bank of New South Wales v. The Commonwealth (3) ). The effect of a “ severability ” provision is to reverse the normal presumption {Bank of New South Wales v. The Commonwealth (1) ). Whether s. 2 of the Act achieves its intention can be tested by observations relating to a similar section made in Bank of New South Wales v. The Commonwealth (4). Section 43 of the Act covers objects which apply to transactions some of which are, and some of which are not, within the scope of the legislature’s powers. The position discussed in Vacuum Oil Co. Fty. Ltd. v. Queensland [Ao. 2] (5) is precisely the position in this case. A uniform general rule was prescribed which governed persons and transactions both inter-State and intra-State, and therefore partly without and partly within the legislative powers. The requirement cannot be satisfied if it be necessary to introduce limitations and exceptions in a notional way in order to give it a lawful operation. What would be required here is shown in Attorney-General for Ontario v. Reciprocal Insurers (6). The presence or absence in a statute of an express acknowledgment of s. 92 of the Constitution does not make any difference in its appheation [Peanut Board v. Rockhampton Harbour Board (7) ).
[McTiernan j. referred to Vacuum Oil Co. Pty. Ltd. v. Queens land [No. 2] (8).]
,
The proper distinction is shown in Mattheivs v. Chicory Marketing Board [Viet.) (9) ; see also Peanut Board v. Rockhampton Harbour Board (10). The position in this case more closely approximates the position in the Dried Fruits Act 1924-1927 (S.A.) [James v.
(1) (1948) 76 C.L.R.. 1.(6) (1924) A.C. 328, at p. 346.
(2) (1948) 76 C.L.R., at p. .369.(7) (1933) 48 C.L.R. 266, at p. 283.
(.3) (1948) 76 C.L.R., at p. 370.(8) (1935) 51 C.L.R., at p. 686.
(4) (1948) 76 C.L.R., at pp. 370-372.(9) (1938) 60 C.L.R. 263, at p. 283.
(5) (1935) 51 C.L.R. 677, at pp. 691,
(10) (1933) 48 C.L.R., at pp. 306, 307,
692.314.
SI C.L.R.]
OF AUSTRALIA.
Coivan (1)).
H. C. OF A.
The Profiteermg Prevention Act of 1948 deals prima
facie with business in its entirety. The position is precisely
19.50.
covered in Bank of New South Wales v. The Commonwealth (2).
Graham
Even with the aid of s. 2 there cannot be discovered an intention
V.
to deal with all transactions by which the business is made up ;
P.ATER.SOM.
with intra-State or inter-State sales. The power of the commis sioner goes to persons and to classes. He has power under the Act to make an order which applies to the entire business of a person or the entire business of classes. The burdening of an act of inter-State sale is sufficient to make the act contrary to s. 92. A partial prohibition is sufficient {The Commonwealth v. Bank of New South Wales (3) ).
[Williams J. referred to Field Peas Marketing Board {Tas.) v.
CAements and Marshall Pty. Ltd. (4).]
If the Act operates generally to achieve the result shown it cannot be saved by having regard to an individual transaction [Attorney-General for Manitoba v. Attorney-General for Canada (5) ). The point is that whereas trade itself may be severable, the Court is required to sever the operation of the Act considered as an Act authorizing the doing of administrative actions which would con travene s. 92. This Act is of general application which works a partial prohibition and within the principle of The Commonwealth V. Bank of New South Wales (6); the very creation of that power works an invalidity. That was what was intended by the reference to it being a question of fact. The rule as to the test of whether an Act imposed an illegal burden or was merely regulatory being a question of fact, was stated in The Commonwealth v. Bank of New South Wales (7). The proposition stated in that case (7) was that the Banking Act 1947 authorized the interference by empowering, not that that in fact happened. In order to determine whether an Act can be severed its true character must be ascertained, that is, is it invalid by what it authorizes ; what it does, apart from the actions of an individual. Considered apart altogether from how' The Profiteering Prevention Act affects an individual trader in a particular transaction, it prevents him from engaging in inter state trade to some extent, or prevents other people from engaging in inter-State trade with him. Apart from the application of the severability rule generally, the Act discloses an intention to operate on inter-State trade. This is showm by the provisions for the
(1) (1932) A.C. 542 ; 47 C.L.R. 386, (4)
(1948) 76 C.L.R. 414, at pp. 421,
at p. 396.
422.
(2) (1948) 76 C.L.R., at p. 390. (5)(1925) A.C. 561, at p. 568.
(3) (1950) A.C. 235; (1949) 79 (6)
(1949) 79 C.L.R. 497.
C.L.R. 497. ' (7)(1950) A.C. 23.5, atp. 310 ; (1949)
79 C.L.R., at p. 6.39.
8HIGH COURT
[1950-
| H. | C. OF A.uniforinity of tlie legislation with the legislation of other States. | |
|
(tRAHAMbe considered {Bank of New SowLh Wales v. The Commonwealth
V.(J) ). Janies v. South AusLraMa (2), to which apjiroval was given
I’athrson.
in The Commonwealth, v. Bank of New South Wales (3), relied directly , on the ])roposition that the prohibition contravened s. 92 as e.xpounded in W. d A. McArthur Ltd. v. Queensland (4). The prohibition of inter-State sales is a direct contravention of s. 92 {James v. Cowan (5) ). The decision in W. d A. McArthur fjtd. V. Queensland ((>) was overruled to the extent shown in Bank of Neiv South Wales v. The Commonwealth (7), except that the Privy Council considered that the particular transaction was not rightly considered as an inter-State transaction. In James V. The Commonwealth (8) a distinction was drawn between the use of control in its regulatory sense and in the sense of placing a burden. Under s. 30 of the Act the commissioner could give directions affecting inter-State trade. That section, and similar sections, cannot be read down to their local application only. Section 43 cannot be read down discriminately so as to confine the operation of the Act to s. 92 ; that could be done only by the aid of a provision similar to s. 6 (c) of the Banking Act 1947. Upon the proper construction of The Commonwealth Powers Act o/1943 (Q.) the Parliament of Queensland abdicated, during the subsistence of the reference, its powers to legislate upon the referred matters. By that Act the Queensland Parliament fettered its power to legislate upon the referred matters, except in a particular manner and in a particu lar form. Any enactment by the State on the subject of profiteering and prices is impliedly an amendment of The Commonwealth Powers Act of 1943. The Profiteering Prevention Act o/1948 is invalid because it was beyond ]30wer altogether ; alternatively, s. 3 of the Common wealth Powers Act of ] 943 prevented its enactment. It was not made in the manner provided in s. 3. The legislature of Queensland had power to fetter itself as to the way in Avhich it would exercise its legislative powder {Attorney-General (A.̂S.IP.) v. Trethowan (9) ). The 1948 Act purports to amend and consolidate the law relating to profiteering and prices, a matter referred to the Commonwealth Parliament by s. 2 (/) of The Commonwealth Powers Act of 1943. The Commonwealth Parliament alone has power to legislate upon this subject. The Commomvealth Poivers Act of 1943 was an exercise of
(1) (J948) 76 C.L.R., at pp. 328, 329.(6) (1920) 28 C.L.R. 530.
(2) (1927) 40 C.L.R. 1.(7) (1948) 76 C.L.R., at pp. 385, 386.
(3) (1950) A.C. 235, at pp. 303, 304 ;
(8) (1936) A.C. 578; (1936) 55
(1949) 79 C.L.R., at pp. 633, 634.
C.L.R., at pp. 56-59.
(4) (1920) 28 C.L.R. 530.
(9) (1931) 44 C.L.R. 394 ; (1932)
(5) (1932) A.C. 542; (1932) 47
A.C. 526 ; 47 C.L.R. 97.
C.L.R. 386.
81 C.L.R.]OF AUSTRALIA.
9
the State’s plenary power to legislate on all matters whatsoever.
H. C. OF A.
Section 107 of the Constitution applies only to powers which States
1950.
had at the establishment of the Commonwealth. Section 51 (xxxvii.)
Graham
of the Constitution should be construed as meaning that when
V.
Paterson.
a matter or part thereof was referred to the Commonwealth Parliament, the State Parliament lost its power in relation to that matter or part thereof. The reference added nothing at all to the Commonwealth power in respect to that subject, so far as trade and commerce among the States was concerned ; the Commonwealth already had, before the 1943 Act, ample power in s. 51 (i.) of the Constitution, subject to s. 92. So that whatever enlargement of Comirionwealth power happened from the reference, it must be with respect to Queensland’s internal prices. The position is not analogous to the delegation of power or authority from an inferior to a superior body; they are both sovereign legislatures within their own spheres. The State has not any power to repeal the 1943 Act, and, a fortiori, it cannot by implication amend or repeal that Act. It is impossible so to limit the 1948 Act that it would not apply to inter-State trade.
[Latham C.J. referred to s. 15a of the Acts Interpretation Act 1901-1948.]
That section is similar to s. 46 (6) of that Act which was con sidered in Pidoto v. Victoria (1). The limitation referred to (2) would not be applicable in the case of a State law relating to trade and commerce because the State has a general power of legislation. There was not any evidence that the offer on which the appellants were charged was an offer made to a person residing in Queensland. The onus was upon the Crown to show that the 1948 Act did not operate so as to burden inter-State trade. Where an authority is required and is given by a Minister for a prosecution on one offence and the evidence discloses another offence the plaint cannot be amended unless there be an authority of the Minister to that effect.
E. H. Ilndson K.C. (with him R. L. Gilbert), for the respondent. There was evidence to support the magistrate’s finding that there was an offering for sale within the meaning of The Profiteering Prevention Act of 1948. The word “ offer ” should be given a broad, common-sense meaning.
Latham C.J. The Court does not wish to hear you further on the point whether there wms evidence upon wJiicli the magistrate could properly find an offering for sale.
(1) (1943) 68 C.L.R. 87, at pp. 107
(2) (1943) 68 C.L.R., at p. 109.
110, 118, 126, 130.
10
[J950.
HIGH COUJIT
It. C. OF A.
E. 11. Jlvdsoii. K.C. The aj)pel]ants‘ trade, including the .subject transaction, \va.s purely an intra-State trade. There was not any OUAIIAMterm of the transaction involving the passage of goods across the
V.border, therefore it vva.s not an inter-State transaction. The mere
I’atioiismn.fact that in times of shortages .supplies of bread for re-.sale in Queens land were obta,ined by the ap])ellants from across the border did not constitute inter-State trade.
I Latham C.J. referred to Vacuutn, Oil Co. Pty. Ltd. v. Queens land (1).|
The Court will not pass upon the validity of an Act when there is no evidence of an inter-State transaction [Crothers v. Sheil (2) ; Home Benefits Ply. Ltd. v. Crafter (3) ; Andrews v. Howell (4) ). The division of offers for sale was quite ea.sily made. There was no great difficulty in classifying which belonged to intra-State trade and which belonged to inter-State trade. Eegard should be had to the content of the offer. It was only the publication or the making of an offer inside the State of Queensland that amounted to an offence under the Act. It may be conceded that an offer for sale would be just as offensive to s. 92 of the Constitution as the sale itself. However, that would not make the application of the doctrine of severability any more difficult in relation to offers for sale than the actual sale. Provisions such as s. 2 (2) of the Act and ss. 15a and 46 (6) of the Acts Interpretation Act are simply rules of construction whereby Parhament indicated its intention. In the 1948 Act the State Parliament has indicated the intention that whatever may be the effect of the Act in relation to inter-State transactions it was to operate on intra-State transactions (W. & A. McArthur Ltd. v. Queensland (5) ; Andrews v. Howell (6) ; Pidoto V. Victoria (7) ). The Act regulates all .sales save those which were withdrawn from the power of regulation by s. 92. It was a clear expression of parliamentary intention to which the Court can give effect. Section 2 of The Commonwealth Powers Act of 1943 has no sense, meaning or significance except when read in conjunction with s. 51 (xxxvii.) of the Comstitution, and so read it can only operate to satisfy a condition upon the occurrence of which a concurrent power of legislating on the part of the Commonwealth comes into existence under s. 51. It is of some significance that the very words of s. 51 (xxxvii.) are repeated in the preamble to
the 1943 Act.
The various matters enumerated in s. 2 of the 1943
Act should be regarded as if they were additional paragraphs to s. 51.
(1) (1934) 51 C.L.R. 108.(5) (1920) 28 C.L.R., at p. 558.
(2) (1933) 49 C.L.R. 399.
(6) (1941) 65 C.L.R., at pp. 263, 279,
(3) (1939) 61 C.L.R. 701.
280.
(4) (1941) 65 C.L.R. 255.
(7) (1943) 68 C.L.R., at pp. 110, 111.
81 C.L.R.]OF AUSTRALIA.
11
The Commonwealth derives its legislative power from s. 51 and that
H. C. or A.
1950.
is a concurrent and not an exclusive power.
If a power be exercised
with regard to a specified matter, the result is that that specified
Ghaham
matter should be regarded as appearing within s. 51. The word
V.
Paterson".
“ refer ” does not mean “ exclusively hand over.” The 1948 Act
was not an amendment of the 1943 Act.
[He was stopped on this point.]
This is not a case where it is necessary to discuss the application
of s. 92. There was abundant evidence to support the prosecution
in fact.
The 1943 Act did not affect the State Parliament’s power
to enact the 1948 Act.
-
P. D. Phillips K.C. (with him C. I. Menhennit), for the Common wealth, intervening by leave. There is a power in the States to refer matters to the Commonwealth, to terminate the reference, to attach a period of time to the reference, and to amend the reference. Therefore all the powers which were in fact exercised in the 1943 Act, were validly exercised, and all existed. When the States do refer a matter they indicate the subject matter which, for mutual purposes, was to be made the subject of certain operations, and that is all they do. They do not pass over anything ; they neither give it away nor pass it to anybody else. They refer the matter; they denominate it. The States cannot transfer matters ; they might transfer powers. They can only denominate matters. The meaning of the word “ refer ” in association with “ matter ” is the denominating matter, knowing that s. 51 (xxxvii.) exists and that in consequence the Commonwealth may make laws relating to the subjects so denominated. Subject to any question under s. 109 of the Constitution the power of the State continued unimpaired and undiminished notwithstanding that it was referred to as being transferred to the Commonwealth. There may be inter-State trade even in the absence of a contractual obligation to trade across State borders. The contrary view which might be deducible from W. & A. McArthur Ltd. v. Queensland (1) is not accepted. The facts in this case do not show that the sale was of imported goods ; and the quotation of the price was for delivery in Queensland, therefore a question of inter-State trade did not really arise. Some dangers would result from the taking of a narrow view of inter-State trade, or even an acceptance of the apparent effect of W. & A. McArthur Ltd. v. Queensland (1) without full consideration of where it extended. The sale must be a sale in inter-State trade and commerce. That is a process of moving goods across State borders
(1) (1920) 28 C.L.R. 630.
li!HIGH COURT[1950.
H, (!. OI.’ A.
I'JoO.in the process of trade and commerce, ft does not involve any
contractual legal obligations to remove them. It may be that if
(itiAllAUthe appellants are jiersons who were not themselves involved in
i'.
inter-iState trade in the relevant transactions they liave no locus standi to raise the issue {Andrews v. Howell (I) ). .Different opinions have been expressed on the point as to whether a jierson who is not himself involved in inter-iStat,e trade can escape his liability by assert ing that this Act is invalid under s. 92 ; see Andrews v. Howell (2) ; Milk Board (Â.*S.Ih.) v. Metropolitan Cream Ply. Lul. (.3) ; and Crothers v. Shell (4). Ji is still oyien to argue that the Court will deny a right to attack for invalidity to a [lerson whose whole relevant conduct is intra-State. Without any severability clause a statute attacked under s. 92 may be read down by reason of “ common law ” rules, that is, if the legislature is subject to some kind of limitation, e.g., territorial, or as imposed by s. 92, then the Court will presume, if it can, that the legislature did not intend to extend beyond its limits, whether territorial, or as to subject matter {Macleod v. Attorney-General for New South Wales (5); W. & A. McArthur Ltd. v. Queensland (6) ). Sub-section (2) of s. 2 has a wider operation than sub-s. (1) of that section ; it is much more than being a more emphatic statement. It is not an unconstitutional delegation of legislative power to direct the Court to give operation to the wall of Parliament however com plicated or difficult the process was made to be in any one case. So far as the State Act wars concerned, this Court wmuld not be exercising wdiat it was forbidden to exercise, the legislative power of the (.'ornmomvealth, in acting in this regard in respect of a State law ; if it ŵas exercising legislative yiower it would be the legislative powmr of the State, because the State had requirerl all courts wdiich dealt with this statute to do so. By reason of s. 2 the situation in Pidoto v. Victoria {I) W'as reversed, the residual portion was ascer tained and there was a, declaration that it should be the law. Sub-section (2) is not a severable provision in the true sense. The Court should not give a narrow’ view to inter-State trade and commerce which necessarily limited it to contracts of sale obligating the vendor to transfer across State boundai’ies or the like. Inter State trade and commerce is a very much wider concejit. It consisted of practices and methods of business men anrl not the form in w'hich tliey cast their contracts.
1’atkjison.
(1) (1941) (>r>
C.L.R., at iip. 203, 204.
(5) (1891) .A.C. 455.
(2) (1941) 0.5 C.L.R., atV- 204.(0) (1920) 28 C.L.R. 530.
(3) (1939) 02 C.L.R. 1 10.(7) (1943) OS C.L.R. 87.
(4) (1933) 49 C.lv.R. 399.
81 C.L.R.]OF AUSTRALIA.
13
H. C. OF A.
M. F. llardie K.C. (with him J. R. Kerr), for the State of Kew South Wales, intervening by leave.
1950.
State price-fixing legislation was
vahd and fully effective in relation to both intra-State and inter
GB-41IAM
state transactions. Even if s. 92 operated to put beyond the opera
V.
tion of State legislation prices charged in inter-State transactions the
Patekson.
legislation was valid and effectual in relation to all other transactions. The State of New South Wales adopts the argument addressed to the Court on behalf of the respondents on the matter of the reading down of the legislation. The Queensland legislation under con sideration was practically identical with New South Wales statutes, iCct No. 18 of 1943 and Act No. 26 of 1948. A reference under s. .51 (xxxvii.) of the Constitution did not in any way diminish the power of the State to legislate on the referred subject. It was only when such referred power had been exercised by the Common wealth that the State’s powers could possibly be affected, that is, by virtue of s. 109. It was common ground in this case that there had not been any exercise by the Commonwealth of the power referred to it by the Queensland Parliament in accordance with the provisions of The Commonwealth Powers Act of 1943 (Q.). It was clear from the presence of par. (xxxvii.) in s. 51 and not in s. 52 that the Commonwealth acquired a concurrent power only and not an exclusive power. As it was a concurrent power only, s. 107 of the Constitution clearly preserved the State’s powers in relation to all matters dealt with in the 1943 Act until such time as the Commonwealth saw fit to exercise those powers. The language in s. 107 is apt to apply to this case. It was clear from the recital to the 1943 Act, and other portions of that Act, that the word “ refer ” was used in s. 2 in the sense in which it was used in the Constitution. It means a delegation of some thing. It describes the act of delegating or empowering the Commonwealth to legislate upon a ])articular subject. In the context it means non-exclusive or concurrent delegation. Unless and until the delegation has been acted upon by the Commonwealth the State is free to legislate on the various matters referred to it in the reference legislation to the same extent as it was before the legislation was passed.
C. G. Wanstall, in reply There are in s. 51 powers of the Com monwealth which, from their nature, must be considered to be exclusive Commonwealth powers, e.g., jiars. (iv.), (xxiv.), (xxx.),
(xxxi.), (xxxiv.), (xxxv.) and (xxxviii.).
The proposition that s. 92
is not offended if goods are expropriated entirely before they enter into trade, was decisively rejected in Peanut Board v. Rockham'pton
14HIGH COUUT
[1950.
H. a OI.' A. Harbour Board (I). The suggestion that a contractual obligation
IDoO.to .pass good.s across the border of iSta,tes is necessary to constitute
(iUAIIAiUinter-State tra.de and comni(;rce is not correct and was di.scarded
r.
in -lameH v. The ConiaiomveaUh (2); see also Ba,nk oj New Bouth
Patuk.son.
Wales V. 77ic doniniouaveallJi
(!ur. adv. vuU.
May ir,.
The following written judginents were delivered :—
IjATHAm C.d. Tills appeal comes to this Court under the
Judiciary Act l9().‘Mt)18, s. .49 (2) ilo). The appellants were con
victed of an ollcnce against s, d3 of The Prqfileering Prevention Act
of 1948 (Q.). iSection -14 ]irovides that a person shall not sell any
declared goods at a greater price than the maximum price fixed in
relation thereto by or under the Act for the sale of those goods.
The defendants contended, inter alia, that the Act was invalid
because, in providing for the fixing of prices for the sale of goods,
it infringed s. 92 of the Constitution of the Commonwealth, which
provides : “ 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.”
In the first place, the appellants contend that there was no evidence that, even if the Act is valid, they committed the offence with which they were charged. The jirecise charge was that the appellants did contravene a provision of Part III. of ‘ The Profiteer ing Prevention Act of 1948’ in that contrary to the provisions of Section 43 of the said Act they the said Charles Graham and Frank Akehurst did sell by offering for sale declared goods namely a standard loaf of bread at a price of Eightpence such price being a greater price than the maximum price to wdt Sevenpence half penny fixed in relation thereto under the said ‘ The Profiteering Prevention Act of 1948 ’ for the sale of such goods.” It was proved that bread was “ declared goods ” under the Act and that a price of sevenpence halfjjenny had been fixed under the Act for a two- pound loaf of bread. Section 6 of the Act j)rovides that “ sell ” includes, inter alia, offer or ex]30se for sale. Section 44 (6) provides that for the purpose of s. 44 “ a ])erson shall be deemed to sell by offering for sale goods . . . if he notifies the price or rate proposed by him for a sale of the goods ... by the publication of a price list, by furnishing a quotation, by expo.sing the goods for sale in association with a mark indicating price, or otherwise howsoever.” The evidence of the complainant, who was an investigating officer
(1) (1933) 48 C.L.ll. 260.(3) (1948) 76 C.L.R., at p. 238.
(2) (1936) A.C. ruH; (1936) .05
C.L.R., at {). 57.
81 C.L.R.]OF AUSTRALIA.
I.
belonging to the Prices Branch, was that he entered the defendants’ ‘
baker’s shop in Coolangatta in Queensland, which is a town very close
'
to the border of New South Wales, and bought a two-pound loaf of
Graham
bread for which he was charged eightpence. The defendants told the
V.
officer that the saleswoman who sold the bread at that price did so
I'atersox.
with their authority. The facts stated showed that the defendants
(/aiimn c..f.
notified, by their servant, a price for a sale of the bread. That
price was a greater price than that fixed for a two-pound loaf of
,
bread and therefore there was evidence upon which the defendants, if the Act were valid, could properly be convicted of the offence of selling by offering for sale in breach of the Act.
It is contended, however, that the Act is invalid because it applies in general terms to all sales (that is to all sales in Queens land) of declared goods in respect of which prices are fixed and therefore applies to sales in inter-State trade and commerce. It is argued that the Act therefore imposes a restriction upon such sales by fixing prices therefor, with the result that such sales are not “ free ” so that the Act is invalid as infringing s. 92 of the Con stitution. The Court will not decide such a question unless it is necessary to do so for the purpose of determining a particular case before the Court.
Section 2 of The Profiteering Prevention Act of 1948 is-in the following terms :—“ (1) This Act and every Proclamation, Order in
Council, regulation, declaration, order, approval, direction, require
ment, determination, notice, authority, notification, or prohibition
or other act of executive or administrative authority made, issued,
published, given, or done under or pursuant to this Act by the
Governor in Council, the Minister, the Board, the Commissioner,
any delegate of the Commissioner, or any other person or authority,
shall be read and construed so as not to exceed the legislative power
of the State to the intent that where any enactment contained in
this Act, or provision contained in any such Proclamation, Order
in Council or regulation, or any (or any term., provision, condition,
or limitation of any) such declaration, order, approval, direction,
requirement, determination, notice, authority, notification, or
prohibition or other act of executive or administrative authority
would but for this section be construed as being in excess of that
power, it shall nevertheless be a valid enactment, provision, declara
tion, order, approval, direction, requirement, determination, notice,
■
authority, notification, prohibition, or, as the case may be, other act of executive or administrative authority to the extent to which it is not in excess of that power.”
1()HIGH COURT
[1950.
11. r. UK .5,
‘‘ (2) It is hereby declared to be tlie intention of the Legislative
1950.
.Vssembly —(i/-) Tliat if ;iny enactment of this Act is inconsistent OuAllAiMwith the; CovnHonweaUh of Ausl,ralia Comtitulion Act, or if any
V.exee.ntive or ailniini.stra.tive act done under or pnr.suant to this Act
I’ATHasoN.
is in part so inconsistent, that enactment and all the other enact
l.aUmin C.J.ments in this Act, or, as the case may be, that part and all the other
parts of the executive or administrative act in ijuestion .shall never theless operate to the full extent to which they can operate con sistently with the CommonweaUh of Australia Constitution Act; and (6) That the ]>rovisions of paragraph {a) of this subsection .shall be in a.ddition to, and not in substitution for, the provisions of sub section one of this section.”
It is unnecessary to examine in detail the possible effect of this provision in relation to all conceivable circumstances and contin gencies because at least it is clear that the Legislature has declared its intention that the provisions of the Act should have no operation in any case to which they cannot validly be applied by reason of any inconsistency of the Act with any provision of the Common wealth Constitution. The relevant provisions of the Act relate to sales of goods and the Act therefore deals with trade and commerce. It is plain, therefore, that s. 2 (2) refers to s. 92 of the Constitution, whether or not it has any relation to any other provision in the Commonwealth Constitution. Accordingly the Act has thus pro vided a criterion whereby the application of the Act to different sets of circumstances may be determined in accordance vdth the intention of the Legislature. As the Act has provided this criterion, difficulties which were referred to in Pidoto v. Victoria (1) do not arise in the present case. The effect of s. 2 in relation to the present case is that if the application of the Act to the sale of the bread by the appellants would infringe s. 92 the Act should not have any operation in relation to that sale. Therefore, if, as contended for the appellants, the Act in its general terms applies invalidly to transactions protected by s. 92 and is therefore invalid in such application, the intention of the Parliament has been clearly declared that the Act should not so apply, but that it should apply to transactions to which it is validly applicable.
The sale in question had no inter-State element whatever. The fact that bread sold in Coolangatta might be taken across the border to New South Wales did not bring about the result that a sale across the counter in Coolangatta was an inter-State transaction to which s. 92 applied. It is therefore unnecessary to consider whether the Act, if applied to inter-State transactions, is invalid.
(I) (194.3) 68 C.L.R. 87.
81 C.L.R.]OF AUSTRALIA.
17
It is certainly valid in relation to other transactions and so far as
H. C. OF A.
1950.
s.
92 is concerned is valid in relation to the sale in this case.
But the appellants also contend that the Act is invalid for two other reasons, first, that the Act is an amendment of the earlier
GRAH.4.-M
V.
P.ATERSON.
CommonweaUh Powers Act of 1943 (Q.) and that it has not been passed
in the manner prescribed by s. 3 of that Act, so that it is therefore Latham C..T.
invalid.
The Commonwealth Powers Act of 1943 recites an agreement between representatives of the Commonwealth and State Govern ments and of the Oppositions in the Parliaments of the Common wealth and the States that adequate powers to make laws in relation to post-war reconstruction should be referred to the Parliament of the Commonwealth by the Parliaments of the States and that such reference should be for a period ending at the expiration of five years after Australia ceased to be engaged in hostilities in the then present war. It was also agreed that it was desirable that the reference should not be revoked during that period. Australia ceased to be engaged in hostilities in the said war in September 1945, so that the period referred to in the recital (and in s. 4 of the Act) has not yet expired. Section 2 of the Act provides : “ The following matters are hereby referred to the Parliament of the Commonwealth, that is to say,'’ inter alia, “ (f) Profiteering and prices (but not including prices or rates charged by State or semi-governmental or local governing bodies for goods or services.” Other paragraphs refer to other subjects, e.g. employment and unemployment, organized marketing of commodities, uniform company legislation, trusts, combines and monopolies, air transport, family allowances, people of the aboriginal race &c. Section 3 provides that the Act shall not be repealed or amended except in the manner provided by the section. The section requires the approval of a majority of the electors voting on the question whether a bill for an Act should be approved or not. Section 4 provides that the reference shall continue in force for a period ending at the expiration of five years after Australia ceases to be engaged in hostilities in the war and that no law made by the Parliament of the Commonwealth with respect to matters referred to it by the Act shall continue to have any force or effect by virtue of the Act or the reference made by the Act after the expiration of that period.
The first objection to the 1948 Act based upon the 1943 Act is that the 1948 Act, providing for price fixing and the repression of profiteering, is an amendment of the 1943 Act and that it has not been enacted as j)rovided by s. 3. There is no substance in this
VOL.
i.xxxi.—2
18HIGH COURT
[1950.
H. ,C. OF A.objection.
The 1918 Act does not amend or repeal any provision
1950.of the 1913 Act.
Ghaii.\.mSecondly, it is objected that by the 1943 Act the Parliament of
V.Queensland, by referring to the (.'onutionwealth Parliament the
I’.\THRSON.
matter of pi'ofiteering and prices, transferred all power to legislate
l.atlmiu C.J.in respect of that ma,tter in Queensland to the Commonwealth
Parliament so that the (Queensland Parliament deprived itself of that power. This contention raises the question of the meaning of s. 51 (xx.xvii.) of the Commonwealth Constitution. Section 51 provides that : “ The .Parliament shall, subject to this (Jonstitution, have power to make laws for the peace, order, and good government of the Commonwealth with resj)ect to ” forty specified matters, including “ (xxxvii.) IMatters referred to the Parliament of the (.'Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.”
No ol)jection is made oji behalf of the appellants to the validity of the 1943 Act. The argument proceeded upon this basis, though the respondent was prepared to contend, if necessary, that the Act was not valid. Indeed, the argument of the appellants which is now under consideration depends ujjon the ])roposition that that Act is vahd. It has sometimes been suggested that a reference under s. 51 (xxxvii.) must be an irrevocable reference for all time— that while the matter referred must necessarily be described by reference to its attributes or qualities, yet the reference cannot be limited by reference to a quality or attribute of a temporal character. Such a contention would involve the pro])Osition that a State Parliament can ])ass an unrepealable statute, or at least that any attempt to repeal an Act referring a matter under s. 51 (xxxvii.) would necessarily produce no result. The result of the ado])tion of such a suggestion would be that one State Parliament could bind all subseqTient Parliaments of that State by referring powers to the (.Jommonwealth Parliament. It is unnecessary to consider this (piestion in this case because the essence of the appellants’,
argument is that the 1943 Act is valid and that it deprived the (Queensland .Parliament of ])ower to make laws with respect to the matter referred—as in the case of a transfer of property where, after the transfer has been made, the transferor has not, and the transferee has, the pro|)erty wliicli has been transferred. This analogy is not in my opinion ap])licable. Section 51 confers powers u])on the Commonwealth Parliament to make laws with respect to the matters set forth in the section. These powers are not declared
81 C.L.R.]OF AUSTRALIA.
19
to be exclusive powers of the Commonwealth Parliament. Most
H. C. or A.
of these powers can be exercised concurrently by the State Parlia
1950.
ments with the Commonwealth Parliament. Some of the powers,
Gkaham
it is true, are, by reason of the nature of the subject matter, exclu0.
■
sive, for example—“ (iv.) Borrowing money on the public credit Patbrsox.
of the Commonweath . . . (xxx.) The relations of the Com
LaMi.'iTii C.J.
monwealth (i.e. the Commonwealth as a whole) with the islands of the Pacific.” But the terms of s. 51 do not exclusively vest in the Parliament of the Commonwealth or withdraw from the Parliament of a State any powers previously possessed by a State. Such powers as those to which reference has been made, e.g. borrowing on the public credit of the Commonwealth, are powers which did not exist before the creation of the Commonwealth and therefore were never powers possessed by the States. Section 107 of the Constitution provides as follows ;—“ Every power of the Parliament of a Colony which has become or becomes 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 Commonwealth, or as at the admission or establishment of the State, as the case may be.” Section51 (xxxvii.) does not provide that any power of the Parlia ment of a colony w’hich becomes a State should become exclusively vested in the Commonwealth Parliament or be withdrawn from the Parliament of the State. It is s. 52, and not s. 51, which gives exclusive powders to the Commonwealth Parhament. Therefore the powders of the State Parliament are not diminished when an Act is passed to refer a matter under s. 51 (xxxvii.).
When a State .Parliament acts under s. 51 (xxxvii.) by referring a matter to the Commonwealth Parliament it produces the result of adding to the paragraphs of s. 51 a further paragraph S23ecifying the matter referred. Thus if the matter referred is price fixing and that matter is referred by all the State Parliaments s. 51 may, in relation to that matter, be read as follows :—“ The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to . . . (xxxvii.) Matters referred to the Parliament of the Commonwealth ” &c. (as in par. (xxxvii.) ) “ namely price fixing, being a matter, ref erred hereunder by the Parliaments of all the States.” Thus the reference of matters under s. 51 (xxxvii.) does not
deprive the State Parliament of any power.
It results in the creation
of an additional power in the Commonwealth Parliament. If the Commonwealth Parliament exercises such a p>ower, s. 109 of the Constitution may become applicable, with the result that if a law”
HIGH COURT
[1950.
n.
OK A.
of tho State with respect to a matter referred was inconsistent with ii)r)0.a. law of the Commonwealth, the (Jommonwealth law woiild prevail
Graham
and the State law to the extent of the inconsistency would be
r.
I’ATEIiSON .invalid. But unless the Commonwealth Parliament exercises the
power to legislate with res])ect to the matter referred, no effect Liitliam C.J.whatever is produced in relation to the o[)eration of State laws. In the ])resent case the orders made under Commonwealth legislation iixing ]>rices (namely Nalional SecMrily [Prices) Regulations made under the Natiomd Security Act 1959 as amended) were terminated by the exercise of a [)ower conferred upon a Minister by those regulations as from 20th September 1948. The Queensland legis lation came into operation on that day, which was the day of assent to the Act of 1948 and there is no Commonwealth law Avith which it is inconsistent.
I am accordingly of opinion that the State Parliament did not by passing The Commonwealth Powers Act of 1945 deprive itself of power to make laAvs Avith respect to matters Avhich are by that Act referred to the CommonAvealth Parliament.
The apjjeal shoidd be dismissed.
McTiernan J.
In my opinion this appeal should be dismissed.
The grounds of the appeal raise the question AA’hether the pro visions of The Profiteermg Prevention Act of 1948 under AApich the appellants Avere convicted are inconsistent Avith s. 92 of the Com monwealth Constitution. These provisions upon the true construc tion of their OAvn terms apply to intra-State trade, and AAmuld apply to inter-State trade, if s. 92 is not an obstacle.
The evidence proves that the “ offering for sale,” Avhich is the gist of the offence of Avhich the appellants were convicted, had no relation to inter-State trade.
Section 2 of the Act subjects the Act to two rules of construction. One of the effects of s. 2 (1) is that every provision of the Act is to be read as if it Avere impliedly qualified by the Avords subject to s. 92 of the CommonAvealth Constitution. The provisions of the State Act necessary to support the conviction are limited in their operation to intra-State trade, if they Avould deny to inter-State trade the freedom guaranteed by s. 92 [Vacuum Oil Co. Pty. Ltd.
beyond the limits of legislative poAver or exceeds any restriction on it, for example s. 92, should be construed to apply only to things Avithin the scope of the provision Avith respect to Avhich the
v.
Queensland [iVo. 2] (1) ).
(1) (19,35) 51 C.L.R., at p. 087.
81 C.L.R.]OF AUSTRALIA.
21
Parliament lias power to enact it. The result of the sub-section is
<»’ A.
that the provision is not to fail by reason of a presumption that the
Parliament did not intend that the provision should have a partial
Gkaham
operation if it could not validly have an operation as wide as its
V.
Paterson.
terms. It is therefore unnecessary to decide whether, if the pro-
visions of the Act under which the appellants were convicted are McTieman j.
given a literal construction, they strike further than s. 92 would
allow. If they do so, the offering for sale, the subject of the charge,
fell within the residual operation which sub-ss. (1) and (2) of s. 2
give to those provisions of the Act in relation to inter-State trade.
___
The grounds of the appeal also raise the question of the effect of The Commomvealth Powers Act of 1943 on the legislative power of Queensland. The question is whether the Queensland Parliament had power to pass The Profiteering Prevention Act of 1948 after it passed The Commonwealth Powers Act of 1943 and while that Act was in force. 1 assume but I do not decide that by this Act the Queens land Parliament duly referred the matters profiteering and prices,
as described in s. 2, to the Commonwealth Parliament.
The opera- ■
tion of the Act as a measure vesting legislative power in the Com monwealth depends upon s. .51 (xxxvii.) of the Commonwealth Constitution.
It is sought to meet the logical difficulty of saying that the Queensland Parliament retained these matters within its legislative power, although it had referred them to the Commonwealth Parlia ment, by placing upon the word “ referred ” in s. 51 (xxxvii.) and s. 2 of the Queensland Act the meaning “ denominated.” That may be a definition of the word but it does not seem to be a definition which completely expresses the meaning of “ referred ” in the present context. The Oxford Dictionary, vol. 8, says that the word “ refer ” may mean “ To commit, submit, hand over (a question, cause or matter) to some special or ultimate authority for considera tion, decision, execution ” &c. I think that it is more j)robable that a verb selected from this definition wonld more correctly state the meaning of the word “ referred ” in s. 51 (xxxvii.) than the word “ denominated.” The question whether the sovereign rights of a State in respect of a matter which is duly referred, cease or are suspended during the period of the reference depends less on the meaning'of the word “ referred ” than upon the intention manifested by s. 51 (xxxvii.) of the Constitution.
'
The effect of this provision is tliat a new j)Ower arises in the Commonwealth Parhament when a State Parliament refers a matter to it. It is a j)Ower to make laws for the peace, order and good
government “ of the Commonwealth.”
The power is subject to the
HIGH COURT
[1950.
H. (j. OK A.
restrictions imposed by the Constitution on legislative power and
1!W().
to the special conditions stated in s. 51 (xxxvii.). One special
Grahamcondition is that the operation of a law passed under the new power
V.
Paterson.
is confined to the referring State.
AVhen The CommonweaUh Powers Act came into operation, the
Ak'Tioman J.Commonwealth Parliament then became vested with power, subject
to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to profiteermg and prices and the other matters mentioned in the State Act, extending to Queensland. At the time the Queensland Parliament passed the Act, it had power to make laws with respect to profiteering and prices for the peace, order and good government of Queensland. This power was subj ect to any restrictions imposed by the Common wealth Constitution upon State legislative power but not of course to restrictions thus imposed upon Commonwealth legislative power only. It was an exclusive power of the State in this respect namely that profiteering and prices are not matters expressly mentioned in
s. 51 of the Constitution.
.
This power existed at the establishment of the Commonwealth. Section 107 of the Commonwealth Constitution preserves this power. The Queensland Parliament exerted the power when it passed The Profiteering Prevention Act. It is a power to make laws for the peace, order and good government of Queensland.
The Commonwealth Powers Act could not upon the terms of s. 51 (xxxvii.) cause any power to vest in the Commonwealth Parliament other than a power to make laws with respect to the referred matters for the peace, order and good government of the Commonwealth.
A power which is defined in these terms cannot be a State legis lative power that has become vested in the Commonwealth. It is truly a Commonwealth power. It is subject to all the restrictions imposed by the Commonwealth Constitution upon the exercise of Commonwealth legislative power. It is a power concurrent with the power of the State to legislate with resjoect to the referred matters. It is not that power itself. Having regard to the terms of s. 51 (xxxvii.) and s. 107 it could not be that power.
The Commonwealth. Powers Act 194.3, if valid and effective according to its terms, could not operate as a transfer to the Com monwealth Parliament, or a suspension, of the legislative power of Queensland to pass The Profiteering Prevention Act of 1948. The objection to the conviction founded upon The Commonwealth Poivers Act therefore fails.
81 C.L.R.]OF AUSTRALIA.
23
Williams J. I shall state briefly my reasons for agreeing that
H. C. OF A.
the appeal should be dismissed. There was, in my opinion, ample
1950.
evidence to justify the magistrate holding that the appellants had
Gkaham
offered the loaf of bread for sale at eightpence and therefore above the
V.
fixed price by their employee behind the counter with their authority
P.ATEKSON.
offering the loaf for sale and selling it to Kelly at this price. The offer, the acceptance and the delivery of the bread all took place in the shop and therefore in Queensland, and there was no inter-State element whatever in the transaction. Section 2 (2) of The Profiteer ing Prevention Act of 1948 (Q.) expresses a clear intention on the part of the Queensland Parliament that the Act is to operate to the full extent to which it can operate consistently with the Constitu tion. Accordingly, the Act is intended to operate upon intra-State trade even if it infringes s. 92 of the Constitution in respect of trade and commerce among the States. I must not be taken to favour any assumption that the Act does this. But, assuming that it does, I have no doubt that the Act is operative with respect to
intra-State trade.
,
There remains the question whether The Commonwealth Powers Act of 1943 (Q.) invalidates The Profiteering Prevention Act. Sec tion 3 of the former Act provides the particular manner in which the Act may be repealed or amended. It was contended that the latter is an amendment of the former Act and that, the amendment not having been made in this manner, the latter Act is invalid. But The Profiteering Prevention Act does not amend The Commonwealth Powers Act. The Commonwealth Powers Act was passed to enable the Commonwealth Parliament to legislate on certain matters under s. 51, par. (xxxvii.) of the Constitution. The Profiteering Prevention Act does not attempt to repeal or amend this legislation. It leaves The Commonwealth Powers Act exactly as it was before and is merely legislation on the same subject as one of the matters, that is profiteering and prices, referred to the Commonwealth Parliament by The Commonwealth Powers Act.
The Profiteering Prevention Act could only be invalid, in the absence of inconsistent Commonwealth legislation within the meaning of s. 109 of the Constitution, of which there is none, if the effect of The Commonwealth Powers Act was to confer on the Com monwealth Parliament exclusive power to legislate for Queensland with respect to the referred matters.
The Commonwealth Pov)ers Act purj)orts to refer a number of matters to the Commonwealth Parliament for a term. The validity of such a reference was not argued because the parties and interveners were all interested in upholding the validity of the Act and on it
24HIGH COURT
[1950.
H.
ui.- A.1 say notliing. Assuming that the Act is valid, the question is
1950.wliether tlie Commonwealth Paxliament acquires exclusive or
Graiiabi
concurrent ])owers of legislation over the matters referred. A more
V.appropriate word than “ referred ” might perhaps have been chosen
Pathrson.but it is significant that ]iar. (xxxvii.) is included in s. 51 which Williams .).confers concurrent and not exclusive legislative ])owers on the
Commonwealth Parhament except in the case of certain powers which acipiire exclusiveness from their subject matter and contents. There is no reason to su])j)ose that the framers of the Constitution ever intended that legislation of the Commonwealth Parliament with respect to matters referred to it by a State Parliament should have a different operation in that State to its operation in a State which afterwards adopts the law. But it would seem to be clear that an adopting State would still retain all its previous powers of legislation and that the Commonwealth legislation adopted by the State would invalidate the legislation of that State only to the extent to which the two laws were inconsistent within the meaning of s. 109 of the Constitution. If the Commonwealth Parliament acquires an exclusive power of legislation for a State with respect to a matter referred to it by that State, the existing laws of the State on that matter might well become invalid because they no longer rested on any constitutional power, and they would at least become unalterable by the State during the reference whether the Common wealth Parliament chose to legislate or not.
Section 106 of the Constitution provides that the Constitution of each State of the Commonwealth shall, subject to this Constitu tion, continue as at the establishment of the Commonw’ealth until altered in accordance with the Constitution of the State. If the reference of a matter to the Commonwealth Parliament under s. 51, par. (xxxvii.) of the Constitution effects an alteration in the Constitution of a State by depriving a State of power to legislate on that matter, it must do so by virtue of the words “ subject to this Constitution ” in s. 106, but the words of the j^aragraph appear to me to be no more than an authority for the Commonwealth Parliament to legislate on that matter and quite insufficient to effect such an alteration. Section 107 of the Constitution provides that every power of the Parhament of a State shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawm from the Parliament of a State, continue as at the establishment of the Commonwealth. The Constitution does not state expressly anywhere that a referred matter is to be exclusively vested in the Commonwealth Parlia ment nor does it state expressly that such a matter is to be with-
81 C.L.R.]OP AUSTRALIA.
25
drawn from the Parliament of a State, and again the words of the
H. C. or A.
paragraph appear to me to be quite insufficient to raise a necessary
1950.
implication to this effect.
Gbaham
V.
In the light of ss. 106 and 107 of the Constitution, and the con siderations already mentioned, I am of opinion that the Common
Patjbeson.
wealth Parliament only acquires a concurrent power of legislation
Williams J.
over matters referred to it by the Parliament of a State and that the Queensland Parliament had power to enact The Profiteering Prevention Act.
Webb J. I have had the opportunity of reading the judgment prepared by the Chief Justice and for the reasons he gives I think the order nisi should be discharged.
As to the meaning of “ matters referred ” in s. 51 (xxxvii.) ; I do not think that it is intended to give a State Parliament power to refer matters irrevocably to the Commonwealth Parliament to be exercised by that Parliament exclusively. The consequence of that would be that a State Parliament could completely deprive itself of any authority for all time, although the Commonwealth Parliament might decline to legislate with respect to all or any of the matters referred. I do not think it was intended that a State Parliament could bind its successors to that extent. If I held that it was not intended that a State Parliament could bind its successors to any extent that would be tantamount to holding that the Queensland Commonwealth Powers Act of 1943, referring matters for five years, was beyond power. As to this there was no submis sion or argument. Mr. Hudson for the respondent said he was prepared to argue that this Act was invalid, but he was not required to do so to support the magistrate’s judgment. I leave undecided the question whether the Act of 1943 is beyond power.
As to the question whether matters are referred to the Common wealth Parliament exclusively ; when referred they become subjects of legislation by the Commonwealth under s; 51, which contains the concurrent powers, but not only the concurrent powers. If it were intended to confer exclusive power on the Commonwealth I think matters referred would be brought within s. 52, which confers exclusive power on the Commonwealth Parliament. It is difficult to form a satisfactory conclusion based merely on the consequences of holding either that the matters are referred exclu sively or that they are not so referred. But if they are held not to be exclusively referred s. 109 resolves any resulting conflict between Commonwealth and State legislation.
2(iHIGH COURT
[1950.
H. c. (JF EuLi.AtiAH .1,
In this case I have had the advantage of reading
tlie judgnient of tlie CJiief Justice. 1 am inclined to take a different
Ukaiiam
view of wliat (constituted the “ offering for sale ” of the bread by
V.the a|)])ellants. The ])oint, liowever, is of no importance, because
1'atekson,
I n.m clearly of opinion that there was plain evidence of the commis sion of an offence under the Act. At all other points I find myself in complete agreement with the judgment of the Chief Justice, and ] have nothing to add.
Appeal dismissed with costs.
Solicitors for the appellants, Henderson d Lahey, Brisbane.
Solicitor for the respondent, O’Driscoll, Crown Solicitor for
Queensland.
Solicitor for the Commonwealth, K. C. Waugh, Crown Solicitor for the Commonwealth.
Solicitor for the State of New South Wales, F. P. McRae, Crown Solicitor for New South Wales.
J. B.
6
0
0