Perre v Pollitt

[1976] HCA 27

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

PERRE v. POLLITT

(1976) 135 CLR 139

14 May 1976

Constitutional Law (Cth)

Constitutional Law (Cth)—Freedom of interstate trade—Prohibition of unlicensed person's packing citrus fruit for sale by wholesale—Whether prohibition valid against packer of fruit for sale interstate by wholesale—Prohibition of unlicensed person's taking delivery of citrus fruit except from licensed person—Whether prohibition valid against person taking delivery for packing and sale interstate by wholesale—The Constitution (63 &64 Vict. c. 12) s. 92—Citrus Industry Organization Act, 1965-1972 (S.A.), ss. 20(2), 30(1) (a)—Acts Interpretation Act, 1915 (S.A.), as amended, s. 22a.

Decisions

1976, May 14.
The following written judgments were delivered:-
BARWICK C.J. On 24th September 1974, Francesco and Pasquale Perre ("Perre Bros.") in the course of their business as packers and sellers of citrus fruit conducted at Waterloo Corner, South Australia, took delivery of a quantity of citrus fruit from a Mr. Delaine and a Mr. Tsitses at the South Australian towns of Loxton and Lyrup respectively. This fruit was intended by these growers to be sold by wholesale interstate. It was delivered to Perre Bros. for that purpose. In accordance with the growers' intention, Perre Bros. on 25th September packed a quantity of this citrus fruit for sale by wholesale interstate. (at p142)

2. At the time of these sales, Perre Bros. were not holders of the relevant licence under the Citrus Industry Organization Act, 1965-1972 (S.A.) ("the Act"). Both Mr. Delaine and Mr. Tsitses were persons other than the Citrus Organization Committee of South Australia ("the Committee") set up under the Act. Therefore, these activities by Perre Bros. were contrary to the terms of cl. 11 of Citrus Marketing Order No. 8 made pursuant to s. 22(1) (b) of the Act. This clause provides that "no citrus seller other than the Committee, a licenced wholesale seller, a licensed packer or a licensed processor shall buy or take delivery of other citrus fruit from any person other than the Committee or a licensed wholesale seller". (at p143)

3. Perre Bros. were neither holders of the relevant licence under the Act in respect of the packing of this fruit, nor had they the written consent of the Committee under s. 30(1)(a) of the Act authorizing them to do so. That sub-section provides that "a person, who is not the holder of a licence authorising him to do so, shall not, unless authorised in writing by the Committee, pack fruit for sale by wholesale". (at p143)

4. The respondent complained that Perre Bros.: 1. being persons who were not the holders of a licence authorizing them to do so, and not being authorized in writing by the Citrus Organization Committee to do so, did pack citrus fruit for sale by wholesale contrary to s. 30(1)(a) of the Act; 2. being persons who packed a quantity of oranges did fail to treat the said oranges with a fungicide in the manner prescribed contrary to reg. 5(a) of the Citrus Industry (Fruit Quality Grades - Oranges) Regulations, 1968; and further complained that they: 1. being citrus sellers did take delivery of citrus fruit from Jack Leon Delaine who is a person other than the Committee or a licensed wholesale seller contrary to cl. 11 of Citrus Marketing Order No. 8 made pursuant to s. 22(1)(b) of the Act; 2. on or about the 24th September 1974 at Lyrup being citrus sellers did take delivery of citrus fruit from Evangelos Tsitses who is a person other than the Committee or a licensed wholesale seller contrary to cl. 11 of Citrus Marketing Order No. 8 made pursuant to s. 22(1)(b) of the Act. (at p143)

5. The complaints were heard at Adelaide by a stipendiary magistrate who convicted the appellants of a breach of s. 30(1)(a) and of a breach of reg. 5(a) of the Citrus Industry (Fruit Quality Grades - Oranges) Regulations 1968. The magistrate also dismissed the complaints that they had committed breaches of cl. 11 of Citrus Marketing Order No. 8. (at p143)

6. The appellants have appealed to this Court against the magistrate's conviction in relation to the breach of s. 30(1)(a) of the Act. (at p143)

7. The learned magistrate found that there was a specific agreement between the grower Tsitses and Perre Bros. that his fruit should be packed and sold interstate by them. He found that, whilst there was no express agreement as to the manner of dealing with Delaine's fruit of which Perre Bros. took delivery, as Perre Bros. at the relevant time exclusively engaged in interstate dealings in citrus fruit, it was understood that Delaine's fruit would be packed for sale interstate. (at p144)

8. On these findings, the magistrate concluded that s. 92 protected the acceptance of delivery of the fruit of the growers Tsitses and Delaine. But he held that packing, in contrast to the acceptance of delivery, was not an inseverable or indispensable concomitant of trade in citrus fruit and that it was not a commercial necessity in that trade. Consequently, he concluded that s. 92 did not protect Perre Bros. in relation to the packing of the fruit in question without the relevant licence. (at p144)

9. Evidenced before the magistrate were examples of unpacked citrus fruit being transported by lorries specially fitted for that purpose. It was said that transportation of fruit in interstate trade occurred in this fashion. It was therefore submitted that the packing of citrus fruit was not a necessary part of the preparation of the fruit for sale or delivery in the course of interstate trade. (at p144)

10. But this submission, in my opinion, is based on a mistaken, but perhaps unexpressed assumption that s. 92 does not protect the individual's interstate trade but only such trade if carried on with the minimum of necessary steps or procedures. But it is the individual's trade which the Constitution guarantees. If he is dealing in packed citrus fruit, it cannot be said, in my opinion, that because he could deal interstate in unpacked fruit, he can be forbidden by a State to pack his fruit. It cannot be said that there could be no interstate trade in packed citrus fruit. Indeed, the impression I gather from the evidence and exhibits before the magistrate is that transportation of unpacked citrus fruit is the exception rather than the rule, the exception being confined to fruit destined for juicing rather than for sale as whole fruit for consumption as such. (at p144)

11. The magistrate, in his reserved decision, canvassed the case law on the application of s. 92 fully and thoroughly. But, in my opinion, the decisions do not justify his order of conviction in this case. It may be granted that, as the decisions presently stand, some acts commercially performed in preparation for interstate dealings in commodities are not so intimately connected with the actual transaction of interstate trade as to come within the protection of s. 92. I do not regard this as an occasion for the citation and discussion of case law bearing on that particular aspect of the constitutional provision. Suffice it to say here that cases which deal with positive legislative directions need to be distinguished from cases which deal with negative legislative provisions, such as a prohibition on sale, or, as here, on packing. What is merely preparatory to interstate trade and not part of it is in reality a question of fact upon which informed minds may differ. Perhaps the cases on trade in timber in Tasmania afford a sufficient illustration. See Deacon v. Mitchell (1965) 112 CLR 353 ; Webb v. Stagg (1965) 112 CLR 374 ; and Tamar Timber Trading Co. Pty. Ltd. v. Pilkington (1968) 117 CLR 353 . Here, as I have said, the appellants were engaged in interstate transactions in packed fruit. It is, to my mind, irrelevant that others dealt in unpacked fruit. It was the failure of the magistrate to identify the nature and subject matter of the appellants' trade that led him to think that packing was not an "inseverable, indispensable concomitant of the trade": nor was "it due to 'commercial' necessities". But, if the appellants' trade - not trade generally, or someone else's trade - was in packed citrus fruit, particularly if packed citrus fruit was a commercial commodity, it could not be said that packing was not indispensable to the trade in packed citrus fruit. (at p145)

12. Though I see no occasion in this case to discuss the ever-mounting series of decisions on the application of s. 92, I ought to refer to Hartley v. Walsh (1937) 57 CLR 372 . That case, in my opinion, should now be regarded as overruled. The basic error committed by the majority, in my opinion, was not to have recognized that there was, according to the facts of the case, a trade in unpacked fruit. To compel those who traded interstate in unpacked fruit to pack their fruit before sale was a direct interference with their trade. On this ground alone, the decision ought not to stand. The case in a sense was the obverse of the present. Here, the appellants' trade is in packed fruit. In so far as there is interstate trade in that fruit, the effect of the prohibition on packing may be regarded as an endeavour to confine interstate trade in citrus fruit to a trade in unpacked fruit. (at p145)

13. In my opinion, the magistrate was in error in convicting the appellants. The appeal should be allowed, the conviction set aside and the complaint dismissed. (at p145)

14. The respondent has appealed against the dismissal by the magistrate of his complaint of breaches of Citrus Marketing Order No. 8 made pursuant to s. 22(1)(b). The magistrate found that taking delivery of fruit destined for interstate trade was an essential aspect of that trade and protected by s. 92. (at p146)

15. In my opinion, the magistrate's decision was correct. The Perre Bros. were found to be exclusively engaged in interstate trade in citrus fruit. They received the fruit from the grower for the purpose of packing it for sale by an interstate transaction as packed citrus fruit. To forbid the packer in such circumstances to accept delivery of the fruit is, in my opinion, quite clearly to place an impediment in the way of the interstate trade of the grower in packed citrus fruit. On this point alone, I would support the magistrate's decision. (at p146)

16. Also, the acceptance of delivery as a step in the interstate movement of the citrus fruit may rightly be said to be an essential aspect in this case of the interstate trade in the grower's citrus fruit. Such delivery cannot, in my opinion, be regarded as a preparatory process beyond the reach of s. 92. It is not removed from but, indeed, is an essential part of the movement interstate of the fruit which is to be sold by an interstate sale. The effect upon the grower's interstate trade of a prohibition upon the delivery of its subject matter to the agent who is expected to negotiate the interstate sale of the fruit is not merely remote or consequential. It is direct and constitutes an inadmissible burden on the interstate sale then in contemplation at the instance of the grower. Perre Bros. were agents to effect an interstate sale and arrange delivery in pursuance thereof. (at p146)

17. There was a faint effort made to convince the Court that the magistrate was wrong, chiefly on the ground that in the case of the fruit received from Delaine, the evidence of its commitment to interstate trade was not as clear as was the case in connexion with the fruit received from Tsitses. But there was evidence from which Delaine's intention in sending the fruit to the appellants could be inferred. The magistrate's finding is sufficient to support the conclusion that Delaine's fruit was committed to interstate trade and that the appellants were Delaine's agents to sell the fruit interstate after it was suitably packed for the trade in packed citrus fruit. (at p146)

18. I would dismiss the appeal by the respondent. (at p146)

GIBBS J. Francesco Perre and Pasquale Perre, who traded as Perre Bros. ("the defendants"), had a packing shed at Waterloo Corner in South Australia and there graded and packed citrus fruit. They had no licence under the Citrus Industry Organization Act, 1965-1972 (S.A.) ("the Act") to pack fruit at Waterloo Corner - indeed, they had been refused a licence - and they were not authorized by the Citrus Organization Committee of South Australia ("the Committee") to pack fruit there. In September 1974 they took delivery, in South Australia, of citrus fruit from two South Australian growers, Tsitses and Delaine, and carried that fruit in bins to the shed at Waterloo Corner where it was packed into cartons. It was then sent to a market in another State. According to findings which were not challenged, there was an agreement between the defendants and Tsitses that they would pack his fruit in South Australia and sell all of it interstate on his behalf and pay him the balance of the market price after deducting certain fees and expenses. There was no express agreement with Delaine that his fruit should all be sold interstate but Delaine understood that most or all of it would be sold interstate, and the magistrate found that Delaine's fruit was taken by the defendants for the purpose of selling it interstate. He further found that all the fruit the subject of the charges was sold by the defendants interstate by wholesale. In respect of these transactions four charges were laid against each defendant, viz.: 1. being a citrus seller he did take delivery of citrus fruit from Delaine who is a person other than the Committee or a licensed wholesale seller contrary to cl. 11 of Citrus Marketing Order No. 8 made pursuant to s. 22(1)(b) of the Act; 2. a similar charge in relation to the taking delivery of citrus fruit from Tsitses; 3. being a person who was not the holder of a licence authorizing him to do so, and not being authorized in writing by the Committee to do so, did pack citrus fruit for sale by wholesale contrary to s. 30(1)(a) of the Act; 4. being a person who packed a quantity of oranges failed to treat them with a fungicide in the manner prescribed contrary to reg. 5(a) of the Citrus Industry (Fruit Quality Grades - Oranges) Regulations, 1968, made under the Act. Each of the first two charges was dismissed but each defendant was convicted on the third and fourth charges. The defendants have appealed against their convictions on the third charge and the complainant has appealed against the dismissal of the first and second charges. No appeal has been brought against the convictions on the fourth charge. (at p147)

2. By s. 30(1)(a) of the Act it is provided that a person who is not the holder of a licence authorizing him to do so shall not, unless authorized in writing by the Committee, pack citrus fruit for sale by wholesale. All the elements of the offence created by this provision were proved against each defendant. The question, however, is whether s. 30(1)(a) is rendered inapplicable to the situation of the defendants by the combined effect of s. 92 of the Constitution and s. 7 of the Act or s. 22a of the Acts Interpretation Act, 1915 (S.A.), as amended. The effect of the last-mentioned sections, stated shortly and so far as they are relevant, is that the operation of the Act should, if possible, be confined to those cases to which it can validly apply consistent with s. 92 of the Constitution. (at p148)

3. On behalf of the complainant it was submitted that the packing of the fruit was not part of the interstate trade in the fruit but was merely preparatory to it; packing, it was said, was a means by which the grower or packer made himself ready to trade and the statutory restriction on the packing had at most a practical effect on the trade. If this submission is correct, s. 30(1)(a) would validly apply to the packing of the fruit notwithstanding that it was intended to be sold interstate. A statutory provision will violate s. 92 only if it operates to restrict interstate trade, commerce or intercourse "directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote": The Commonwealth v. Bank of New South Wales (1949) 79 CLR 497, at p 639; (1950) AC 235, at p 310 . A restriction, burden or liability imposed by a law will be direct and immediate in its operation on interstate trade if it is imposed by reference to or in consequence of "a fact or an event or a thing itself forming part of trade commerce or intercourse, or forming an essential attribute of that conception, essential in the sense that without it you cannot bring into being that particular example of trade commerce or intercourse among the States"; if the restriction, burden or liability is not so imposed, the fact that the law produces some secondary effect or consequence on interstate trade is not enough for the purposes of s. 92: Hospital Provident Fund Pty. Ltd. v. Victoria (1953) 87 CLR 1, at p 17 ; see also the authorities cited in S.O.S. (Mowbray) Pty. Ltd. v. Mead (1972) 124 CLR 529, at pp 599-601 . In conformity with these principles it was held in three cases that the protection of s. 92 did not extend to the use of vehicles to carry timber within Tasmania from mills to yards where the timber was to be dried and treated in other ways and then either probably or certainly shipped interstate: Deacon v. Mitchell (1965) 112 CLR 353 ; Webb v. Stagg (1965) 112 CLR 374 ; Tamar Timber Trading Co. Pty. Ltd. v. Pilkington (1968) 117 CLR 353 . In these cases the carriage within Tasmania was not part of the interstate journey, but was at most a preliminary, even if an essential preliminary, to interstate trade, and so not within the protection of s. 92 (see per Taylor J. (1968) 117 CLR, at pp 373-374 ). Naturally the complainant places strong reliance on these decisions. (at p149)

4. The question whether a particular procedure itself forms part of interstate trade or an essential attribute of that conception, or is on the other hand merely an antecedent or preparatory transaction which is no more than "incidental or ancillary or conducive" to interstate trade (see Samuels v. Readers' Digest Association Pty. Ltd. (1969) 120 CLR 1, at pp 30-31 ), must depend on all the facts and circumstances of the particular case. In the present case the magistrate found that the marketing of citrus fruit in South Australia, whether for consumption intrastate or interstate, involves the following steps - the fruit is carried in bulk bins from the growers to the packers where it is washed, treated with fungicide, waxed, graded and packed into cartons or bags; it is then dispatched from the packing shed to the wholesaler. The magistrate added, however, that at least one person has the packing done in the State to which the fruit is sent. Although the normal course of trade is to pack the fruit before it is carried interstate, it is possible to carry the fruit in bins without first packing it. For this reason the magistrate held that packing is not an integral part of the interstate trade in citrus fruit; he said: "It is not an inseverable, indispensable concomitant of the trade, nor is it due to 'commercial' necessities." If the magistrate meant that s. 92 protects interstate trade only if it is conducted by means that can be described as absolutely essential, or in other words by taking the fewest possible steps, he was wrong, for interstate trade is to be free however it is conducted. A law forbidding the carriage from one State to another of fruit that had been graded and packed in cartons or bags would clearly be bad, notwithstanding that it would be possible to carry the fruit without first grading and packing it in that way. However, the law now under consideration is directed at the packing itself, and the question to be decided is whether what is forbidden is something antecedent or preparatory to the interstate trade, so that the burden placed on interstate trade is only indirect or consequential. (at p149)

5. In the three cases from Tasmania to which I have referred the treatment which the timber received in the yards to which it was carried produced what was for the purposes of commerce a new commodity - timber that has been dried and treated is commercially speaking a different commodity from raw timber. Similarly, dried fruit is a different commodity from fresh fruit, so that it follows, as Menzies J. said in Webb v. Stagg (1965) 112 CLR, at p 380 , that "The carriage of apricots to be dried for export overseas is not part of the overseas carriage of dried apricots". The drying and treating of the timber, or the drying of the fruit, would for the purposes of s. 92 be the same as the manufacture or production of a commodity, and therefore antecedent to the trade in that commodity. But when citrus fruit is packed, in the manner described in this case, it remains the same commodity. With all respect, I cannot agree with the observation of Latham C.J. in Hartley v. Walsh (1937) 57 CLR 372, at p 379 that packing fruit is "just like any other manufacturing or producing operation". Nothing is produced when an orange is packed; after packing it is still an orange. Of course it is true, as Latham C.J. also said in that case, that the operation of packing is begun and completed at one place within a State, but that would be equally true of the operation of loading a truck, yet it would surely be clear enough that a law could not validly forbid the loading of goods for carriage interstate. A thing done entirely within one State may form an integral part of interstate trade. It is now well recognized that the majority in Hartley v. Walsh (1937) 57 CLR 372 in basing their decision on the purpose of the challenged law, were proceeding on principles that are no longer acceptable, as was pointed out in Bierton v. Higgins (1961) 106 CLR 127, at p 135 . However, in my opinion the rejection of the authority of Hartley v. Walsh (1937) 57 CLR 372 does not conclude the present case. There the regulations in question prohibited the sale of dried fruit unless it had been packed in a registered shed; they had the effect of forbidding interstate trade between growers and packers in unpacked fruit (see per Dixon J. (1937) 57 CLR, at pp 388-389 ). It was unnecessary to decide whether the packing of the fruit itself formed part of interstate trade, because the traders there did not wish to pack the fruit before sending it interstate. To say that s. 30(1)(a) of the Act burdens the interstate trade in packed fruit can only be true, within the doctrine now accepted, if the packing is part of the interstate trade, or supplies an element or attribute essential to that conception. One thus returns to the question already stated, with which Hartley v. Walsh does not deal. (at p150)

6. The line that separates things that form part of trade from those that are no more than antecedent or preparatory to it is often difficult to draw. However, it appears to me that the packing of the fruit in the present case was more than merely antecedent or preparatory to the interstate trade. The close connexion between the packing and the carriage of goods is obvious. Some goods cannot be carried unless they are contained in protective packages - eggs seem an obvious example - and in such a case the packing is clearly indispensable to the carriage. Other goods may be carried either in small containers such as boxes or bags or in a bulk container designed or adapted for the purpose. Citrus fruit is a commodity of that kind. It is not necessary that the fruit be put in boxes or bags, for it can be carried in bulk in bins, but it is essential that the fruit be contained in such a way as will enable it to be carried. Some method of containing the fruit is indispensable, and the carrier is free to adopt whichever method he chooses. Although packing can naturally be regarded as something preliminary to the act of carriage, there is a clear enough distinction between antecedent action done for the purpose of bringing goods into existence, and the act of packing existing goods to enable them to be carried, and the packing is, it seems to me, at least an "inseparable concomitant" of the carriage, to use a phrase from Fergusson v. Stevenson (1951) 84 CLR 421, at p 435 . However, the interstate trade of the packers and the growers is not merely that of carriage. In the ordinary course of their trade, the fruit is packed, loaded, carried and sold. To forbid the fruit to be packed would not just have an economic or practical effect on their interstate trade; it would prevent that trade from being conducted, at all events in the way in which the parties wish to, and do in fact, conduct it. The provisions of s. 30(1)(a), in restricting the right to pack the fruit, place a direct and immediate burden on the interstate trade in the fruit. (at p151)

7. In my opinion it is impossible to regard the provisions as merely regulatory. The Committee has a very wide discretion to refuse an application for a licence. It may do so "if it is satisfied that in the interests of the citrus industry it is undesirable that the licence should be granted": s. 20(2) of the Act. A person whose application to be licensed has been refused may appeal to the Supreme Court, which may allow the appeal "if it is of the opinion that the application was refused without good and sufficient cause": s. 20(6). Notwithstanding this provision for appeal, the matters which the Committee may properly consider are so wide and vague that it cannot be said that the refusal of a licence depends upon "considerations all of which are defined with sufficient particularity, precision and intelligibility to make it possible to pronounce the prohibition of unlicensed" packing "to be nothing but a regulation of that description of interstate trade involving no inconsistency with its freedom" (cf. Hughes and Vale Pty. Ltd. v. New South Wales (No. 2) (1955) 93 CLR 127, at p 165 ). Nor is it possible to describe s. 30(1)(a) (in the words of Menzies J. in Harper v. Victoria (1966) 114 CLR 361, at p 378 ), as "standard-fixing legislation of a general character which has no special features which burden interstate trade". The provisions of reg. 5(a) of the Citrus Industry (Fruit Quality Grades - Oranges) Regulations, 1968, which require oranges to be treated with fungicide, no doubt provide an example of such legislation, although it is not necessary to consider the validity of that regulation in the present case. (at p152)

8. It follows that the charges brought under s. 30(1)(a) of the Act should have been dismissed. And it was virtually conceded that if this conclusion was reached it should also be held that the complaints for breaches of cl. 11 of Citrus Marketing Order No. 8 were rightly dismissed. Clause 11 provides: "No citrus seller other than the Committee, a licensed wholesale seller, a licensed packer or a licensed processor shall buy or take delivery of any citrus fruit from any person other than the Committee or a licensed wholesale seller." In the circumstances discussed above, the defendants took delivery of the fruit in the course of the interstate trade of both the growers and the defendants. Clause 11 did not apply, by reason of the operation of s. 7 of the Act, whose provisions relate to orders under the Act as well as to the Act itself. (at p152)

9. I would allow the appeal brought by the defendants and dismiss the appeal brought by the complainant. (at p152)

STEPHEN J. I have had the advantage of reading the reasons for judgment of Mason J. in this appeal and entirely agree with them; I would only add that in agreeing that the prohibition here in question is not regulatory in nature I have been led to do so by a course of reasoning similar to that appearing in the reasons for judgment of Gibbs J. (at p152)

MASON J. The issue here is whether the prohibition contained in s. 30(1)(a) of the Citrus Industry Organization Act, 1965-1972 (S.A.) against the packing of citrus fruit for sale by wholesale by persons who are not the holders of a licence authorizing them to do so and who are not authorized in writing by the Citrus Organization Committee to do so was an interference with the appellant's interstate trade in citrus fruit which contravened s. 92 or whether it was a regulation of that trade not involving such a contravention. (at p153)

2. It is not in question that the appellants were engaged in interstate trade and that this trade consisted of selling and delivering interstate citrus fruit received from growers in South Australia and subsequently packed by the appellants in containers for the purpose of that trade. What is in question is whether s. 30(1)(a) by prohibiting the appellants from packing without a licence and without the Committee's written authority strikes at interstate trade or any part of it and, if so, whether in so doing, it is no more than a reasonable regulation of interstate trade. (at p153)

3. According to received doctrine a distinction is to be drawn between on the one hand those acts and activities forming part of interstate trade, or "forming an essential attribute of that conception, essential in the sense that without it you cannot bring into being that particular example" of interstate trade, and on the other hand acts and activities which are merely antecedent or preparatory to the commencement of interstate trade (Hospital Provident Fund Pty. Ltd. v. Victoria (1953) 87 CLR 1, at p 17 ; Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55, at p 78 ; Mansell v. Beck (1956) 95 CLR 550, at p 564-565 ; Beal v. Marrickville Margarine Pty. Ltd. (1966) 114 CLR 283 ; Damjanovic &Sons Pty. Ltd. v. The Commonwealth (1968) 117 CLR 390 ). The former, as opposed to the latter, falls within the protection conferred by s. 92. Consequently, manufacture of goods (Grannall's Case (1955) 93 CLR 55 and Beal's Case (1966) 114 CLR 283 ), importation of goods (Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965) 113 CLR 177 and the keeping of hens for commercial purposes (the Damjanovic Case (1968) 117 CLR 390 ), albeit for the purpose of engaging in interstate trade - in the last case the trade being that of selling eggs - have thus far been held to stand outside the conception of interstate trade enshrined in s. 92 on the ground that they are acts or activities antecedent or preparatory to interstate trade. (at p153)

4. Despite the respondent's argument I am unable to perceive a sufficient analogy or likeness between the acts or activities which were the subject of these three decisions and the packing of the fruit in the instant case. It is one thing to identify manufacture and importation as independent and disconnected activities which stand outside the conception of interstate trade, but it is quite another thing to say that packing, so closely related as it is in the circumstances of this case to the interstate sale and delivery of the goods, does not form part of the trade. The packing, to use the traditional terminology, was an "essential attribute" of the trade, without which the interstate trade in packed citrus fruit could not take place; yet it was not disconnected from that trade as, according to the authorities, the production of the citrus fruit itself would be. (at p154)

5. The prohibition, which operates directly and immediately on the appellants' interstate trade, cannot be justified, unless it is regulatory and this it is plainly not. By s. 20(2) the Committee is entitled to refuse an application for a licence to pack "if it is satisfied that in the interests of the citrus industry it is undesirable that the licence should be granted". The discretion thereby conferred on the Committee is so wide and general as to enable it to refuse an application for reasons divorced from the protection of the public and the advancement of the public interest. On no view could legislation conferring a discretion to refuse a licence framed in such general terms be classified as regulatory. (at p154)

6. With respect to the cross-appeal I agree with what the Chief Justice has written. (at p154)

7. In the result I would allow the appeal and dismiss the cross-appeal. (at p154)

JACOBS J. Francesco Perre and Pasquale Perre appeal against their conviction on the complaint that each "being a person who was not the holder of a licence authorizing him to do so, and not being authorized in writing by the Citrus Organization Committee to do so, did pack citrus fruit for sale by wholesale contrary to s. 30(1)(a) of the Citrus Industry Organization Act 1965-1972." (at p154)

2. The sale alleged was a sale to a purchaser in New South Wales and the defence of the appellants was that s. 92 of the Constitution prevented the act of packing citrus for such a sale being validly made an offence under the law of South Australia. (at p154)

3. It is first necessary to determine what was the relevant act or what were the relevant acts of trade commerce and intercourse among the States. One such act was clearly the sale by the growers Delaine and Tsitses of their citrus fruit to purchasers in New South Wales. The sale was to be of packed fruit. A law which prohibited the sale of packed fruit (or of unpacked fruit) to purchasers in another State would constitute a burden on trade commerce and intercourse among the States and unless it could be categorized as regulatory would infringe s. 92. A second such act was the carriage and delivery of the fruit into another State. A law prohibiting such carriage would likewise constitute a burden. There are in this second case two aspects. There is the freedom of the carrier to engage in the trade of carriage interstate. There is also the freedom of the grower to have his fruit carried interstate by a carrier of his choice. A third such act was the arranging of the interstate sale by the commission agents; a law which prohibited the carrying on of such a business in respect of interstate transactions might well constitute a burden on trade commerce and intercourse among the States. Again there are present the two aspects - the freedom of the grower to sell interstate through an agent of his choice and the freedom of the commission agent to engage in his trade of arranging sales into another State. (at p155)

4. But is a grower entitled by virtue of s. 92 to have his fruit packed in South Australia by a packer of his unrestricted choice simply because he has agreed to sell or intends to sell that fruit interstate? And is a person entitled to pack fruit in South Australia simply because he has agreed to arrange sale and delivery of that fruit when packed into another State? These are, as I see the matter, the two critical questions. I would answer them in the negative. Packing of citrus fruit for growers who intend or have agreed to sell that fruit interstate is not itself part of interstate trade commerce or intercourse among the States. The packer engages in a wholly intrastate activity. The only relation of his activity to trade commerce and intercourse among the States is that the fruit packed is intended or agreed by its owner through the agency of a commission agent to be sold in another State. "... the business or occupation of packing fruits has no interstate element in it. It is an operation carried on at a definite place and is begun and completed at that place. It is just like any other manufacturing or producing operation, and in itself it includes no interstate element." (Hartley v. Walsh, per Latham C.J. (1937) 57 CLR 372, at p 379 ). (at p155)

5. The real question is whether the limitation of choice of packers operates to impose a direct burden on the seller's or possibly the commission agent's interstate trade in contradistinction to a burden which is so indirect or consequential that it may fairly be regarded as remote. This involves a question of degree - and it involves a consideration of how the limitation of choice operates, if at all, upon the acts of trade commerce and intercourse which are capable of being affected. (at p155)

6. It is not suggested that the law operates in such a way that a grower who cannot choose at will who shall pack his fruit cannot freely sell interstate or that a commission agent who cannot so choose cannot freely arrange sales and deliveries interstate. The procedure in the industry was described in the evidence of the respondent:

"The procedure in the industry is for the oranges to be picked from the trees and put into bulk bins which have a capacity of either half a ton or one and a half tons. These bulk bins are transported to a packing shed where the fruit is run on to a packing line where it is washed, treated with a fungicide, waxed, graded to size and graded to quality and then packed according to size and quality into either 30 litre cartons or 4.5 kilogramme bags. It is then dispatched from the packing house to a wholesaler. The wholesaler normally dispatches the citrus to a retailer."

He further deposed that licensed packers pack fruit for sale interstate as well as within South Australia. (at p156)

7. There is nothing in the known circumstances to suggest that the limitation of choice imposes a direct burden or restriction on the acts of trade commerce and intercourse among the States of any of the persons engaged in such acts. It can only be so suggested if the rule be that once there are found goods intended or agreed to be sold interstate any law which in any way affects those goods before they are embarked on the course of delivery thereby imposes a direct burden upon the act of trading in those goods. I am not aware that it has ever been so decided. I do not here refer to the question whether a law is merely regulatory and therefore permissible even if it operates to impose a direct burden, though, as I attempted to express in North Eastern Dairy Co. Ltd. v. Dairy Industry Authority (N.S.W.) (1975) 134 CLR 559 this is not an unrelated question. I refer here to the degree of impact which the law has upon the acts of trade. In my view no impact is here shown except one which is so indirect and consequential that it may fairly be regarded as remote. (at p156)

8. The same cannot be said of the subject matter of the other appeal. If it be accepted that the respondents to this appeal were citrus sellers as a result of the wide definition of "sell" in s. 5 of the Act, and upon this I express no opinion, it is clear to me that a prohibition on them taking delivery of the citrus fruit for the purpose of securing its onward movement to another State operates directly to impose a burden on the trade and commerce of Delaine and Tsitses as growers and probably of the respondents as commission agents. The effect upon the grower's interstate trade of a prohibition upon the delivery of its subject matter to the agent who is expected to negotiate the interstate sale of the fruit is not merely remote or consequential but is a direct and inadmissible burden on the interstate sale by the grower then in contemplation. (at p157)

9. I would therefore dismiss both appeals. (at p157)

MURPHY J. The packing of fruit in South Australia for sale interstate is part of the trade and commerce of that State. It is also part of trade and commerce among the States. (at p157)

2. It is not contended that any suggested burden on interstate trade and commerce in the impugned legislation are in the nature of a customs duty or similar fiscal imposition. Even if the power to strike levies were a latent source of such an imposition, it has not been used. (at p157)

3. For the reasons I gave in Buck v. Bavone (1976) 135 CLR 110, at pp 132-138 no contravention of s. 92 of the Constitution is involved. The Citrus Industries Organization Act, 1965-1972 (S.A.) is valid. The magistrate was correct in convicting the appellants. On the cross-appeal the magistrate was in error in dismissing the complaint. No submission was put on whether an appeal lies against a dismissal. (at p157)

4. I would dismiss the appeal, but allow the cross-appeal. (at p157)

Orders

PERRE V. POLLITT.

Appeal allowed with costs.

Order of the Adelaide Court of Summary Jurisdiction set aside and in lieu thereof order that the charge against each appellant for an alleged breach of s. 30(1)(a) of the Citrus Industry Organization Act, 1965-72 (S.A.) be dismissed.

Remit to Adelaide Court of Summary Jurisdiction to fix the amount of the costs to be allowed to the appellants in respect of the proceedings in that Court.

POLLITT V. PERRE.

Appeal dismissed with costs.