Grasstree Poultry Enterprises Pty Ltd v Bycroft

[1969] HCA 57

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Menzies, Windeyer, Owen and Walsh JJ.

GRASSTREE POULTRY ENTERPRISES PTY. LTD. v. BYCROFT

(1969) 119 CLR 390

1 December 1969

Statutes—Constitutional Law (Cth)

Statutes—Power to make regulations—Scheme of legislation—Taxation—Rate of levy to be prescribed—Collection of levy during arrangement between Commonwealth and State—Regulation requiring information in writing—Information necessary to determine and collect levy—Whether validity of regulation depends on valid levy imposed or an arrangement being made—Poultry Industry Levy Act 1965-1966 (Cth) (No. 19 of 1965—No. 68 of 1966), ss. 5, 6*—Poultry Industry Levy Collection Act 1965-1966 (Cth) (No. 20 of 1965—No. 67 of 1966), ss. 6, 10, 12*—Poultry Industry Levy Collection Regulations, reg. 4. Constitutional Law (Cth)—Taxation—Discrimination between parts of a State—Preference to part of a State—Tax imposed by Commonwealth statute collected by State instrumentality under arrangement between Commonwealth and State made pursuant to statute—Tax collected forming fund subject to audit under Commonwealth legislation—Payment from fund to the State as financial assistance—State refund of tax to taxpayer resident in defined part of State—Acquiescence by Commonwealth Minister to refund—The Constitution (63 and 64 Vict. c. 12), ss. 51 (ii.) 99—Poultry Industry Levy Act 1965-1966 (Cth) (No. 19 of 1965—No. 68 of 1966)—Poultry Industry Levy Collection Act 1965-1966 (Cth) (No. 20 of 1965—No. 67 of 1966)—Poultry Industry Assistance Act 1965-1966 (Cth) (No. 21 of 1965—No. 66 of 1966). Constitutional Law (Cth)—Crown—Arrangement by Crown—Arrangement between Commonwealth and State provided for by Commonwealth statute—State legislation administered by Minister amended to refer to any such agreement as might be made—Minister of State of Queensland making arrangement for and on behalf of State—Authority of Minister to so act for State—Ordinary ministerial functions of State Minister—Poultry Industry Levy Act 1965-1966 (Cth) (No. 19 of 1965—No. 66 of 1966)—Poultry Industry Levy Collection Act 1965-1966 (Cth) (No. 20 of 1965—No. 67 of 1968), ss. 5, 6*—The Primary Producers' Organisation and Marketing Acts, 1926 to 1965 (Q.), s. 14E (5).**

Decisions

The following judgments were delivered:-
BARWICK C.J. The appellant was convicted by a stipendiary magistrate in Queensland, acting under The Justices Acts of that State upon a complaint of an officer of the State Department of Primary Industry that it had failed to furnish information required under the Poultry Industry Levy Collection Regulations as to the number of female domesticated fowls not less than six months old kept by it in Queensland for commercial purposes on 11th July 1968. (at p393)

2. All the facts necessary to satisfy the elements of the complaint were established. But the appellant raises two objections which it claims should result in its acquittal of the alleged offence. (at p394)

3. The first point submitted is that reg. 4 of the said Regulations depends for its validity on the existence of a levy under the Poultry Industry Levy Act 1965-1966 (Cth), and that for reasons now to be expressed there was no such valid levy operative on 11th July 1968, the date to which or fourteen days from which the charge relates. (at p394)

4. The reasons for invalidity of the levy proffered by counsel are that the evidence before the magistrate warranted the conclusion that the executive government of the Commonwealth, as it was said, and the relevant Minister of the State of Queensland had an understanding or arrangement, ante-dating the said 11th July that the whole or substantially the whole of any money paid by poultry farmers in North Queensland by way of levy under the Poultry Industry Levy Act should be refunded to those growers. (at p394)

5. No such arrangement or understanding existed, we are told, with respect to other poultry farmers in Queensland nor, I gather, with respect to other poultry farmers in Australia. I much doubt, myself, if the evidence, itself by no means clear, does warrant the conclusion that any such arrangement or understanding existed; but that may be left on one side. (at p394)

6. Counsel for the appellant proceeded to submit that because of the existence of some such arrangement or understanding and its implementation, evidenced by the payment to the poultry farmers of North Queensland of 97 1/2 percent of the amount of the levy paid by them, it should be inferred that the making of the regulation by the Governor-General in Council, under s. 6 of the Poultry Industry Levy Act was for an inadmissible purpose, namely, for the purpose of giving a preference to a part of the State of Queensland over other parts of that State and other parts of the Commonwealth in respect of the payment of the levy. (at p394)

7. For my part, I am unable to accept the view that the validity of reg. 4 is dependent on the existence of a valid levy as on the date by reference to which it is sought to be enforced. Further, I cannot draw the suggested inference as to the purpose of the Governor-General in Council in making the regulation fixing the amount of the levy. The purposes or intention of the Minister who advised the Governor-General is, of course, not relevant and there is no ground whatever in my opinion for questioning the validity of the regulation the Governor-General in Council made to fix the amount of the levy. (at p394)

8. The scheme of the legislation is plain enough. The levy is imposed by Commonwealth legislation, partly by statute and partly by regulation. It is contemplated that the State Egg Marketing Boards will collect the levy. The amounts collected are to form a fund within the meaning of the Commonwealth Audit Act. The Commonwealth Minister is authorized to approve payment out of that fund of amounts to the States by way of financial assistance, such amounts to be applied by the recipient State for the assistance of the poultry industry and in accordance with directions, if any, of the Minister. (at p395)

9. The scheme seems to be that the total amount of the levy collected in each State should be so returned to each State. The method of effecting the assistance of the poultry industry in the State is a matter for the State. In this instance, the evidence suggested that costs of production in North Queensland warranted a greater financial assistance to the industry there than is necessary elsewhere; that the State had the concurrence of the Commonwealth Minister in giving assistance to the industry in North Queensland at a particular level, albeit 97 1/2 per cent of the amount of the levy paid, if that be the fact, does not seem to me to affect the validity of the fixation of the amount of the levy. In my opinion, there is no substance in the appellant's attack in this sense upon the validity or applicability of reg. 4 of the Regulations. (at p395)

10. The other point raised by the appellant is that there was no valid arrangement between the Commonwealth and the State of Queensland for want of authority in the Minister who purported to make the arrangement on behalf of the State. As I have already indicated, I am unable to accept the view that reg. 4 depends, for its validity, on the existence of a valid levy. I am also unable to see that the validity of the regulation depends upon the existence of a valid arrangement within s. 5 of the Poultry Industry Levy Collection Act. No doubt it was contemplated that the use of the State agencies for the purposes of the Levy Collection Act should be dependent upon the making of an arrangement between the Governments, but the legislation does not extend so far as to make s. 10 (1) (a) and s. 12 (b) of the Act subject to, or conditional upon, the existence of such an arrangement. Although without authority in the State agency to collect the levy, it may be that reg. 4 may possibly have no practical operation, although for my part, I do not think that of necessity it would lack utility, its validity is not, in my opinion, dependent upon the existence of a valid arrangement within s. 5 of the Poultry Industry Collection Act. (at p395)

11. As to the authority of the Minister to sign or to make the arrangement with the Commonwealth, which was proved in evidence, in my opinion having regard to the amendments to The Primary Producers' Organisation and Marketing Acts, 1926 to 1965, effected by the action of the Executive Council proved in evidence and which was authorized by that Act, it would be within the scope of the ordinary duties of the Minister, as the Minister administering that Act, to make the arrangement with the Commonwealth, which was proved in evidence. (at p396)

12. For those reasons, in my opinion, the appeal should be dismissed. (at p396)

KITTO J. I agree. (at p396)

MENZIES J. I agree. (at p396)

WINDEYER J. I agree. (at p396)

OWEN J. I agree. (at p396)

WALSH J. I agree. (at p396)

Orders

Appeal dismissed. With the exception of the added expense involved in the hearing of the case in Sydney rather than Brisbane, the applicant will pay the costs and as to those added costs the respondent will pay the costs of both parties in that respect.