Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld)

[1979] HCA 50

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason and Wilson JJ.

RACECOURSE CO-OPERATIVE SUGAR ASSOCIATION LTD. v. ATTORNEY-GENERAL (Q.)

(1979) 142 CLR 460

12 October 1979

Statutes

Statutes—Proclamations pursuant to statute—Compulsory acquisition of sugar—Power for Governor in Council to determine values and fix prices by proclamation—Delegation of certain functions by Governor in Council to Sugar Board—Discretionary power—Failure to stipulate certain or objective standards—Validity of prices fixed by Sugar Board—Proclamation by Governor in Council determining values and fixing prices for season—Subsequent proclamation—Validity—Sugar Acquisition Act of 1915 (Q.), ss. 6 (1), 10, 13 (2), 14—Acts Interpretation Act of 1954 (Q.), s. 24.

Decisions

Oct. 12.
The following written judgments were delivered:-
BARWICK C.J. In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. He there sets out the curial history of the case and the statutory provisions necessary to be known for the determination of this appeal. I would agree with my brother's conclusion that the appeal should be dismissed. (at p465)

2. The ground on which I would dismiss the appeal is that the proclamation which my brother refers to as the fourth proclamation validly fixed the price to be paid for sugar within the various quotas mentioned in that proclamation. In my opinion, that proclamation provided the factum upon which the second proclamation (again to use my brother's description), given statutory force by s. 10 of the Sugar Acquisition Act of 1915 (Q.) ("the Act"), operated. In my opinion, the Act, through the operation of the second proclamation, reposed the power to fix the prices to be paid for the acquired sugar in the Governor in Council exclusively. There can be no doubt, in my opinion, that the Governor in Council had power to fix more than one price and had, as he did in the fourth proclamation, fixed differing prices for sugar falling within the different quotas as described: cf. s. 6 (1) of the Act. It is also clear from s. 6 (1), in my opinion, that the Governor in Council had a discretion in fixing such prices and that in the exercise of that discretion the Governor in Council was not limited to the material supplied by the Sugar Board and was free to consider material supplied by the Committee of Inquiry. (at p465)

3. The right to payment for the acquired sugar was in the long run derived from the Act though the quantification of the amount to be paid was left to the Governor in Council. That quantification is effected by fixing, by proclamation, the price to be paid. I agree with my brother's conclusions that what he refers to as the third proclamation was invalid in so far as it purported to allow the Sugar Board to determine the price or prices to be paid. (at p465)

4. These conclusions are sufficient to dispose of the appeal and I express no opinion upon other matters which were raised in argument or touched upon by my brother in his reasons, with one exception. Although not necessary for the decision of this appeal, I think it proper that I should express my view as to whether, when the Governor in Council has validly fixed the prices by a proclamation, he could thereafter alter those prices. In my opinion, he could not. As I mentioned earlier, the proclamation fixing the prices was the factum upon which the statutory right to compensation operated. That right was statutory notwithstanding the use of the second proclamation to carry out the statutory scheme. Upon the making of a valid proclamation fixing a price or prices, the statutory right to payment is complete. It is not a question, in my opinion, as to whether the Governor in Council is functus officio when a valid proclamation fixing the prices has been made. Nor, in my opinion, is the matter aided by the undoubted ability of the Governor in Council to make proclamations from time to time. The Act does not reserve to the Governor in Council any power or discretion to alter the operation of the Act once it has operated. Thus, in my opinion, the price fixed by a proclamation validly made becomes the price to which the dispossessed owner of the sugar is entitled. (at p466)

5. In my opinion, the appeal should be dismissed. (at p466)

GIBBS J. The appellants are eight companies, each of which is the owner of a sugar mill in the State of Queensland. The respondent is the Attorney-General for that State. The appellants commenced proceedings in the Supreme Court of Queensland against the respondent, and by their statement of claim each of the appellants claimed a declaration that it had not been fully paid by the Government of Queensland in respect of raw sugar and cane invert, the product of the 1977 season's crop of sugar cane manufactured in the years 1977 and 1978, which it formerly owned but which was divested from it and vested in the Government by a proclamation under the Sugar Acquisition Act of 1915 ("the Act") dated 19th May 1977 and gazetted on 21st May 1977. The total of the amounts alleged to have been underpaid is substantial. The respondent demurred to the statement of claim, and the demurrer was heard by the Full Court of the Supreme Court, which allowed the demurrer, and gave judgment for the respondent. The appellants have now appealed to this Court. (at p466)

2. The questions which arise on this appeal depend on the effect of the Act, and of certain proclamations made under it. The arrangement of the Act is not altogether logical. By s. 5, the Act validated a proclamation which had been made on 30th June 1915, before the Act was passed. By that proclamation, which is set out in the schedule to the Act, the Govenor in Council acquired all raw sugar, the product of the 1915 crop of sugar cane, and declared that all the property and title of the owners was divested from the owners and vested in the Government and "changed into a right to receive payment of the value thereof in the manner and to the extent to be hereafter determined and declared by a further proclamation or proclamations . " By s. 10 of the Act, the Governor in Council is given power, at any time and from time to time, to extend the operation of the Act by proclamation published in the Gazette, "so as to authorise the acquisition by His Majesty of raw sugar to be manufactured in any future year, or of any foodstuffs, commodities, goods, chattels, live stock, or things whatsoever (in this Act referred to as commodities) in any such Proclamation mentioned". That section further provides as follows:

"Thereupon any such commodity may be acquired by a Proclamation containing provisions similar to those of the Proclamation set forth in the Schedule to this Act, with such modifications as may be deemed necessary, and this Act shall extend and apply to the commodity mentioned in such Proclamation to the same extent and in the same manner as if such commodity were expressly mentioned in this Act."

Section 13 of the Act provides, inter alia, as follows:

"(1) The Governor in Council may from time to time make and publish in the Gazette all such Proclamations as he thinks fit for giving full effect to this Act . . . (2) Every Proclamation made under this Act shall be read as one with this Act and construed as being of equal validity, and shall be judicially noticed."

Certain provisions with regard to the payment of the price for the sugar or other commodity acquired are made by s. 6. Sub-section 1 of that section provides as follows:

"In any Proclamation under this Act, the prices of raw sugar or other commodity acquired under and for the purposes of this Act may be different for the same commodity, having regard to different qualities or to market conditions, or to localities of delivery, or to circumstances or conditions of production or manufacture, or to any other fact or circumstance which the Governor in Council thinks it proper to take into consideration; and the prices so fixed and no other prices shall be payable to the late owners respectively concerned."

By s. 7, it is provided, inter alia, that no action, claim or demand shall lie against His Majesty or the Treasurer or any other person acting in execution of any proclamation made under the Act in respect of any damage or loss or injury sustained by reason of the Act or any such proclamation or anything done thereunder, "save only for or in respect of the valueas ascertained under this Act of any raw sugar (or other commodity) acquired by His Majesty thereunder". Section 14 provides, inter alia, that all moneys that may be required for the payment of the value of raw sugar, or any other commodity to which the Act has been extended, shall be paid out of consolidated revenue. (at p468)

3. The provisions of the Act to which I have referred indicate that at least three proclamations are necessary to enable the Government to acquire sugar produced in any year after 1915. First, there must be a proclamation extending the operation of the Act so as to authorize the acquisition of the sugar manufactured in the year in question. Secondly, there must be a proclamation acquiring the sugar. The provisions of this proclamation must be similar to those of the proclamation set out in the schedule to the Act "with such modifications as may be deemed necessary". Finally, there must be a further proclamation, which determines and declares the price to be paid to the former owners for the sugar acquired, or, to use the rather clumsy words of the proclamation contained in the schedule to the Act, the manner and extent of the payment of the value of the sugar. It is clear that more than one proclamation may be made for this final purpose. (at p468)

4. Although the Act bears the hallmarks of legislation hastily drafted in order to meet an emergency in time of war, it has been given what is, in effect, a permanent operation in relation to the acquisition of sugar. Indeed, it has become one of the legislative instruments by which there has been developed an elaborate system for the control of the sugar industry. From year to year since 1915, proclamations have been made extending the operation of the Act, acquiring sugar and providing for payment, and usually also dealing with such matters as the quality of the sugar and the manner of its delivery. (at p468)

5. In conformity with the procedure contemplated by the Act, three proclamations were made by the Governor in Council in respect of the raw sugar and cane invert, the product of the 1977 season's crop of sugar cane. Although these proclamations deal with cane invert as well as with raw sugar, no separate question arise as to the former commodity, and it is therefore convenient, in referring to the provisions of the proclamations, to omit any reference to it. By a proclamation made on 19th May 1977, and gazetted on 21st May 1977, the Governor in Council extended the operation of the Act so as to authorize the acquisition by Her Majesty of raw sugar manufactured in the year 1977 and then in existence in Queensland, and raw sugar thereafter to be manufactured in 1977 and 1978. (The reason for the reference to 1978 is that the manufacture of the sugar produced from the crop of cane of a particular season is not completed until after the end of the calendar year.) By a second proclamation, also made on 19th May 1977 and gazetted on 21st May 1977, it was declared that all such raw sugar was (with immaterial exceptions) to be kept for the disposal of Her Majesty's Government of the State of Queensland and all the title and property of the existing owners was divested from them and vested in the Government and was "changed into a right to receive payment of the value thereof in the manner and to the extent to be hereafter determined and declared by a further Proclamation or Proclamations . . .". These words are of course the same as those contained in the proclamation in the schedule to the Act. (at p469)

6. On 26th May 1977, the Governor in Council made a further proclamation ("the third proclamation") which was gazetted on 28th May 1977. By this proclamation it was declared that the prices of raw sugar acquired under the proclamation of 19th May 1977, payable to the owners, should be at the rates set out in the schedule to the third proclamation but subject always to the terms and conditions set forth in that schedule. Clause 5 of the schedule dealt with the manner of delivery, and cl. 8 gave the Sugar Board power to determine the total tonnage of 94 net titre sugar accepted from each mill. The provisions of the schedule which are relevant to the present case were the following:

"6. (i) As it is estimated that a substantial proportion of the total quantity of sugar produced or to be produced in the season 1977 will not be required for consumption and use in the Commonwealth of Australia, except for special purposes, it is expedient that one price shall be paid for portion of such total quantity of sugar and that a separate price or prices be paid for the balance. (ii) Now, therefore, subject to the adjustments provided for in clause 12 hereof, all sugar within the quantity of 94 net titre sugar specified opposite the name of each millowner and his mill in the Appendix hereto taken delivery of and accepted by the Minister shall be accepted on the condition that 26 per centum of such sugar is deemed to be required for consumption and use in the Commonwealth of Australia and that the remainder, 74 per centum, is deemed to be surplus sugar, as hereinafter described. . . . 10. Subject as aforesaid and to the adjustments provided for in clause 12 of this Schedule: (i) The price payable to each millowner for the proportion of his raw sugar delivered and accepted and required for consumption and use in the Commonwealth of Australia in terms of sub-clause (ii) of clause 6 hereof shall be at the rate of One hundred and thirty-eight dollars ($138.00) per tonne of 94 net titre sugar delivered f.o.b. less a deduction of a sum calculated at the rate of Eight dollars ($8.00) per tonne of such 94 net titre sugar, such lastmentioned sum to be paid by the Minister to the Sugar Board to be used by the Sugar Board to defray the cost of administration and other general costs of the Sugar Board, and also the cost of providing special concessions to consumers of sugar agreed to between the Governments of the State of Queensland and the Commonwealth of Australia: Provided that the Minister may authorise the Sugar Board in its sole discretion to increase or reduce the said price of One hundred and thirty-eight dollars ($138.00) per tonne if in the opinion of the Board the sugar accounts so warrant. (ii) The price payable to each millowner for the proportion of his raw sugar deemed to be surplus sugar in terms of sub-clause (ii) of clause 6 hereof shall be One hundred and thirty dollars ($130.00) per tonne of 94 net titre sugar delivered f.o.b.: Provided that the Minister may authorise the Sugar Board in its sole discretion to increase or reduce the said price of One hundred and thirty dollars ($130.00) per tonne if in the opinion of the Board the sugar accounts so warrant. Payment of the purchase money provided for in this clause shall be made on the Thirty-first day of May, 1978: Provided that such date for payment may be varied by either earlier or later payment in accordance with the payment formula from time to time adopted by the Sugar Board. 11. (i) . . . (ii) Excess sugar shall be - (a) such portion of the deliveries made and accepted by the Minister as hereinbefore provided by each millowner as the Sugar Board shall, in its sole discretion, determine to represent sugar manufactured from sugar-cane grown on lands which are not assigned to any mill pursuant to the provisions of the Regulation of Sugar Cane Prices Act 1962- 1972 or on lands which are in excess of the area for annual harvest as prescribed by the Central Sugar Cane Prices Board; and (b) the amount (if any) by which the deliveries made by a millowner and accepted by the Minister as hereinbefore provided, other than such portion thereof as is excess sugar within the meaning of paragraph (a) of this subclause, exceed the quantity of 94 net titre sugar specified opposite the name of such millowner and his mill in the Appendix hereto.

Clause 17 in effect reduced the price payable for excess sugar by the amount of lighterage and/or railage charges. (at p471)

7. The Sugar Board referred to in these provisions is a body whose existence is recognized by the Sugar Board Act of 1966 as well as by proclamations made under the Act although its constitution, powers and functions do not appear to be anywhere precisely delineated. However, it is not in dispute that, to use the words of Lucas J., "it may be taken that the Sugar Board, as well as performing other functions acts as an authority to take delivery of sugar and market it on behalf of the Queensland Government". (at p471)

8. The third proclamation contained an appendix which specified, opposite to the name of each millowner and his mill, a quantity of sugar. This is the appendix mentioned in cll. 6 (ii), 11 (ii) (b) and 12 (iv) (c). The quantity so specified in respect of each mill is known as the "mill peak". Each year a recommendation as to mill peaks is made to the Minister by the Central Sugar Cane Prices Board after hearings held under s. 42 of the Regulation of Sugar Cane Prices Act of 1962, as amended (which replaced s. 12A of the Regulation of Sugar Cane Prices Act of 1915, as amended). The recommendations are referred by the Minister to the Governor in Council, "who may give such effect thereto as he thinks fit in making any Proclamation in respect to the next succeeding year" (s. 42 (3)). (at p471)

9. As appears from the provisions of the third proclamation, the mill peak is not a limit on the amount of sugar that may be produced by a mill or on the amount of sugar that will be acquired from the mill at other than a nominal price. By cl. 12 (iv) (c) the Sugar Board was required to determine not later than 30th September 1977 a percentage of sugar above the mill peaks that would be accepted and paid for at other than nominal rates. Lucas J., who delivered the judgment of the Full Court, stated that that Court was told that in the 1977 season sugar was acquired up to 100 per cent above the peak. (at p471)

10. Under the provisions of the third proclamation the sugar acquired from any millowner (which, with immaterial exceptions, was all the sugar produced) was, for the purposes of payment, notionally divided into four quotas. These may be described, with sufficient accuracy for present purposes, as follows. The first quota was that proportion of the sugar delivered by the mill within the limit of its peak that was deemed to be required for consumption and use in Australia ("home consumption") (cl. 12 (iv) (a), and see also cll. 11 (ii) and 12 (ii)). The second quota was the remainder of the sugar delivered by the mill within its mill peak (cll. 12 (iv) (b) and 11 (ii)). This sugar was called surplus sugar (see cll. 12 (i) and 6 (ii)) - a term apparently intended to imply that the sugar was surplus to the requirements of home consumption. The third quota was the quantity of sugar delivered by the mill beyond its peak up to the percentage determined by the Sugar Board (cl. 12 (iv) (c)). This is part of the sugar described as "excess sugar" (see cl. 11 (ii)). The term perhaps refers to the fact that the sugar is produced in excess of peaks, although as will be seen it includes some other sugar as well. The fourth quota was the remainder of the excess sugar delivered by the mill - it comprised sugar made from cane grown on lands not assigned to any mill or on lands in excess of the area for annual harvest as prescribed by the central Sugar Cane Prices Board and any sugar delivered by the mill in excess of the percentage above peak determined by the Sugar Board (see cll. 12 (iv) (d) and 11 (ii)). Only a nominal price is payable for this sugar (see cl. 12 (iv) (d), (f)); it is convenient to call it "penal excess", although the third proclamation does not so describe it.

12. The adjustments referred to in subclause (ii) of clause 6 hereof shall be made in the following manner - (i) When the strength and weight of the whole of the sugar to be produced, delivered, and accepted in the season 1977 shall have been determined in accordance with clause 8 hereof, the Sugar Board shall determine the total amount of such sugar which it deems to have been and to be required for consumption and use in the Commonwealth of Australia up to the Thirtieth day of June, 1978, (excluding sugar, if any, which, for purposes which, in the opinion of the Sugar Board, are special purposes, is either disposed of in Australia or reserved in Australia and which sugar is deemed to be part of the sugar hereinafter referred to as exportable sugar). In determining the quantity of sugar deemed to have been and to be required for consumption and use in the Commonwealth of Australia as aforesaid, the Sugar Board shall pay due regard, in its sole discretion, to the normal amount deemed necessary by the Sugar Board to be held in stock on the Thirtieth day of June, 1978, to safeguard continuity of deliveries of sugar and sugar products in the Commonwealth of Australia until sugar becomes available from the next season's production. The quantity accordingly determined by the Sugar Board to have been and to be required for consumption and use in the Commonwealth of Australia shall be deducted from the whole of the sugar produced, delivered, and accepted by the Minister as hereinbefore provided in the season 1977 and the balance shall be referred to as exportable sugar. From such exportable sugar shall be deducted the total excess sugar delivered in terms of clause 11 hereof and accepted by the Minister as hereinbefore provided; the remaining sugar shall be deemed to be surplus sugar. (ii) The Sugar Board shall then determine the proportion that the sugar deemed in accordance with subclause (i) of this clause to be required for consumption and use in the Commonwealth of Australia bears to the total production, exclusive of the total deliveries of excess sugar. (iii) On the Thirtieth day of April, 1978, or whenever earlier or later than that date the Sugar Board considers sufficient information is available for the purpose, the Sugar Board shall estimate the net proceeds and/or the net values of export sugars, that is of surplus and of excess sugars excluding fourth quota sugar as defined in paragraph (d) of subclause (iv) of this clause, taking into consideration - (a) the net proceeds of exportable sugars which have then been ascertained; and (or) (b) all relevant circumstances then affecting or likely to affect the amount of the net proceeds first mentioned in this present subclause; and (or) (c) as regards any sugar still unsold or sugar reserved for stocks or for special purposes or for later sale, all known factors and possible markets and possible risks - and shall determine the net values per tonne of 94 net titre of such surplus sugar and of such excess sugar. (iv) Thereupon an adjustment of payments shall be made in respect of each mill's deliveries of sugar, and for this purpose the total deliveries of each mill shall be deemed to be divided into quotas as follows: - (a) The first quota shall be the amount ascertained by applying the proportion determined in terms of sub-clause (ii) of this clause to the quantity of sugar, exclusive of any excess sugar, delivered by such mill and accepted by the Minister as hereinbefore provided. The price per tonne of 94 net titre sugar payable for such first quota sugar shall be the price set out in subclause (i) of clause 10 hereof. (b) The second quota shall be the remainder, after determination of the first quota, of the sugar, exclusive of any excess sugar, delivered by such mill and accepted by the Minister as hereinbefore provided. The price per tonne 94 net titre sugar payable for second quota sugar shall be the price determined for surplus sugar in respect of the particular mill as prescribed in subclause (iii) of this clause. (c) The third quota (if any) shall be the quantity (if any) of excess sugar within the meaning of paragraph (b) of subclause (ii) of clause 11 hereof delivered by such mill and accepted by the Minister as hereinbefore provided up to a percentage of the quantity of 94 net titre sugar specified opposite the name of the respective millowner and his mill in the Appendix hereto. Such percentage shall be determined by the Sugar Board in its sole discretion after taking into consideration the extent of available markets and any other relevant factors. This determination is to be made by the Sugar Board not later than the Thirtieth day of September, 1977, but may be increased by determination of the Board after that date. Subject to clause 17 hereof, the price per tonne of 94 net titre sugar payable for such third quota sugar shall be the price determined for excess sugar exclusive of fourth quota sugar in respect of this particular mill as prescribed in subclause (iii) of this clause. (d) The fourth quota shall be the remainder (if any) after determination of the third quota, of the excess sugar delivered by such mill and accepted by the Minister as hereinbefore provided. Subject to clause 17 hereof, the price per tonne 94 net titre sugar payable for such fourth quota sugar shall be One dollar ($1.00) or such other amount as the Sugar Board, in its sole discretion, may determine in respect of the particular mill at or about the time of the estimation of the proceeds and/or the net values as prescribed in subclause (iii) of this clause: (e) . . . (f) Provided further that no sugar referred to in paragraph (a) of subclause (ii) of clause 11 hereof shall be paid for at more than One dollar ($1.00) per tonne of 94 net titre sugar. (v) . . . (vi) All determinations made by the Sugar Board under this clause shall be within its sole discretion and shall be final and not subject to appeal.

(vii) . . ." (at p474)

11. Before the third proclamation had been made, a Committee of Inquiry had been appointed by the Governor in Council to inquire into certain questions concerning the sugar industry, including what price pooling arrangements or other means could, consistently with the retention of correct economic incentives for the continued orderly development of the industry, be devised for the protection of the interests of those cane growers and/or millowners who had been, or would be, unable to expand their production when the production of the industry as a whole expanded. It may be inferred, if indeed it is not a matter of common knowledge, that in a time of general expansion a conflict of interest may arise between those millowners who are able to expand production, and, if necessary, to produce sugar greatly in excess of their mill peaks, on the one hand, and those who, by reason of a shortage of land, are prevented from expanding to the same extent. Speaking generally, it might favour the former class if all sugar sold were pooled and one price were paid for all sugar acquired, whereas the latter class would be more likely to benefit if there were two pools for the purposes of price - one price for sugar produced within mill peaks and one price for over-peak sugar, provided that the proceeds of the more profitable sales of the sugar were attributed to the pool of sugar produced within the peaks. There are, of course, many possible variants of these two views, and it should be said immediately that this Court is in no way concerned with the social and economic arguments that it is possible to advance in relation to these complex questions. It lies within the discretion of the Governor in Council to take into consideration these circumstances when he is exercising the discretionary power conferred on him under the Act and especially by s. 6, and this Court is called upon to decide only the questions whether the power has been validly exercised, and if so with what effect. (at p475)

12. The Committee of Inquiry furnished its report on 5th December 1977 and recommended that, for the purposes of determining the price of sugar acquired, there should be two pools - a No. 1 Pool comprising the proceeds of sale of up-to-peak sugar, and a No. 2 Pool comprising the proceeds of sale of over-peak sugar. The value of sugar in the No. 1 Pool was intended to reflect the significance and stability of mill peaks, whereas that of the sugar in the No. 2 Pool was intended to reflect the traditional identity of that sugar as sugar produced at the risk of the producers but to provide incentive for over-peak production. It was recommended that the total value of sugar in No. 1 Pool should be the sum of the proceeds of the sale of sugar - (a) sold for home consumption, and (b) sold to satisfy long term contracts, as defined in the report, and (c) sold on the free market until such time as a sufficient quantity of sugar from the season's crop has been sold as will, with (a) and (b), amount to the quantity of sugar produced up-to-peak. The value of sugar in No. 2 Pool was to be the value of all the season's crop sold after the making of the sales required to fill No. 1 Pool. The value of all sugar in each pool was to be averaged to determine the value per tonne of the sugar in that pool. (at p475)

13. The third proclamation does not refer to pools, but it is apparent that the No. 1 Pool recommended by the Committee comprises what the proclamation calls the first and second quota sugar, and that the No. 2 Pool comprises the third quota sugar, and that the Committee intended that the third quota sugar should attract a different, and possibly lower, price than sugar in the second quota. (at p476)

14. On or about 25th June 1978 the Sugar Board purported to determine the value of the 1977 season's sugar for the purposes of the Act; it valued second quota sugar at $213.10 per tonne and third quota sugar at $130.10 per tonne. In calculating these amounts, the Sugar Board applied the recommendations of the Committee of Inquiry. In the meantime, however, the appellants had issued the writ which commenced the present proceedings, by which the appellants claimed, inter alia, a declaration that the recommendations of the Committee of Inquiry might not be lawfully taken into account in determining the amount to be paid to the appellants in respect of the sugar acquired from them. Perhaps it was for this reason that, on 26th June 1978, the Governor in Council made a further proclamation ("the fourth proclamation"), which was gazetted on the same day. Omitting immaterial parts, this proclamation read as follows:

"The prices of raw sugar and of the raw sugar equivalent of cane invert, the product of the 1977 season's crop of sugar cane, manufactured in the years 1977 and 1978 acquired under my Proclamation dated the nineteenth day of May, 1977, and published in the Government Gazette on the twenty-first day of May, 1977, Volume CCLV, payable to owners of such raw sugar and cane invert respectively shall, in relation to the first, second, third and fourth quotas referred to in clause twelve of my Proclamation dated the twenty-sixth day of May, 1977, and published in the Government Gazette on the twenty-eight day of May, 1977, Volume CCLV, be:- Per tonne 94 net titre

First quota $149.90 Second quota $213.10 Third quota $130.10 Fourth quota $1.00" (at p476)

15. The present action is concerned with the price payable for the second and third quotas of sugar acquired from the appellants. The submission made by the appellants was that the third proclamation, upon its proper construction, required the Sugar Board to ascertain the price of the second and third quotas by a mathematical formula, namely, by dividing the estimated net proceeds and/or net values of the exportable sugar of the 1977 season by the aggregate of the total tonnages of the surplus sugar and the excess sugar (excluding fourth quota sugar) of that season; this meant that the Sugar Board was required to fix the same price for the second and third quotas, and that the Sugar Board, in performing this function, was not entitled to apply the recommendations of the Committee of Inquiry. It was further submitted that the application of the formula in the third proclamation had the result that the price of sugar in both the second and the third quotas was $198.95 per tonne, that the price of the sugar was validly fixed by the third proclamation accordingly, that the power to fix the price, once exercised, could not be exercised again, and that the fourth proclamation was therefore ineffective. The respondent disputes that the effect of the third proclamation was that one and the same price was payable for the two quotas, but submits that, in any case, the third proclamation was invalid, and that the fourth proclamation validly determined the prices. (at p477)

16. To enable these arguments to be considered, it is necessary to restate the effect of the provisions of cl. 12 of the third proclamation which prescribe the procedure to be followed in arriving at the prices for the four quotas of sugar. It is unnecessary to devote further attention to cll. 6 and 10, since those clauses are subject to the adjustments required by cl. 12 and are therefore of an interim character, except as to the price for first quota sugar, with which this case is not concerned. Clause 12 requires the following action to be taken when the strength and weight of the whole of the sugar acquired has been determined under cl. 8.
1. The Sugar Board must "determine" the amount of the sugar which it "deems" to have been, and to be, required for home consumption up to 30th June 1978, excluding any sugar which is either disposed of or reserved in Australia "for purposes which, in the opinion of the Sugar Board, are special purposes". In making this determination, the Sugar Board must pay due regard, in its sole discretion, to "the normal amount deemed necessary by the Sugar Board to be held in stock" on 30th June 1978 to safeguard continuity of deliveries in Australia until sugar from the next season's production becomes available: cl. 12 (i). 2. The amount so determined is to be deducted from the total of the sugar acquired, and the balance is called the exportable sugar: cl. 12 (i).
3. The total excess sugar (defined in cl. 11 (ii)) is to be deducted from the exportable sugar, and the remainder is called surplus sugar: cl. 12 (i).
4. The Sugar Board must then determine the proportion that the amount of the sugar deemed to be required for home consumption bears to the total amount of sugar produced, excluding surplus sugar: cl. 12 (ii).
5. The Sugar Board must then "estimate the net proceeds and/or net values of exportable sugars, that is of surplus and of excess sugars excluding fourth quota sugar," taking into consideration, inter alia, "as regards any sugar still unsold or sugar reserved for stocks or for special purposes or for later sale, all known factors and possible markets and possible risks": cl. 12 (iii).
6. The Sugar Board must then "determine the net values per tonne of 94 net titre of such surplus sugar and of such excess sugar": cl. 12 (iii).
7. Thereupon an adjustment of payments is to be made and, inter alia, the price payable for second quota sugar "shall be the price determined for surplus sugar in respect of the particular mill as prescribed in" cl. 12 (iii), and, subject to an immaterial qualification, the price payable for third quota sugar "shall be the price determined for excess sugar exclusive of fourth quota sugar in respect of the particular mill as prescribed in" cl. 12 (iii): cl. 12 (iv). (at p478)

17. I shall return to discuss the extent to which this procedure involves the exercise of discretion at a number of stages, but may first deal with the argument for the appellants that the Sugar Board is required to determine only one price for both the second and third quotas of sugar. With all respect, this argument ignores not only the distinction between singular and plural that is drawn by the words of cl. 12, but the whole scheme of the clause. By cl. 12 (iii), the Sugar Board is not required, as the appellants' arguments suggest, to calculate the value of the sugar in the second and third quotas by a means of process of division; it is required, after making an estimation of the proceeds and/or the net values of exportable sugars, to "determine the net values . . . of such surplus sugar and of such excess sugar." The natural meaning of these words (particularly having regard to the plural word "values" and to the repetition of the word "of") is that more than one value may be determined, and that the value of surplus sugar is not necessarily the same as that of excess sugar. The other provisions of the clause support this conclusion. There would be no point in determining the amount of surplus sugar separately from the amount of excess sugar (other than penal excess) if the two quotas were to be the subject of exactly the same treatment. When cl. 12 (iv) declares that the price for second quota sugar is to be that determined for surplus sugar and that the price for third quota sugar is to be that determined for excess sugar (excluding penal excess) it indicates that the two prices are not necessarily the same. Indeed, there would be no purpose in dividing the sugar into four quotas, if three prices only were to be determined. As a matter of construction, therefore, the argument for the appellants should not in my opinion be accepted. (at p479)

18. I should add that we were informed by counsel - and it is a matter of public record - that, for over twenty years, proclamations similar to the third proclamation have been made under the Act, and that separate prices have been determined for the second and third quotas. It is unnecessary to decide whether this fact would have been a relevant matter for consideration in determining the intention of the Governor in Council as expressed in the third proclamation, had that proclamation been ambiguous. (at p479)

19. The conclusion that I have so far expressed would be enough to dispose of the appeal. However, there are other reasons for reaching the same result. The procedure which I have endeavoured to describe is not a mere matter of calculation from objective data. Some of the steps to be taken are mechanical, but others require the Sugar Board to exercise a discretionary judgment. First, the Sugar Board must determine the amount of sugar which it "deems" - which I take to mean "judges" or "decides" - is for home consumption. In making that determination, which itself obviously involves a process of estimation, the Sugar Board must form its opinion as to what are special purposes, and must exercise its discretion as to the normal amount which it deems necessary to hold in stock. Next, the Sugar Board must estimate the net proceeds and/or net values of exportable sugars. To do that the Board must make predictions or conjectures, particularly as to the value of sugar still unsold. Finally, the Sugar Board is to determine the net values of the surplus sugar and of the excess sugar. The third proclamation does not say that the Sugar Board is to ascertain, or calculate these values, but to determine them; i.e. the Board is to make a judgment, not a calculation. The determination of the Board, at all these points, is to be within its sole discretion and is to be final and not subject to appeal: cl. 12(vi). The third proclamation does not prescribe an objective standard which the Board must apply in order to determine the prices of the sugar, but allows the Board to make an unfettered discretionary judgment. The discretion left to the Sugar Board seems to be so wide that, in my opinion, the Board was entitled to take into account the recommendations of the Committee of Inquiry. (at p479)

20. The provisions of the Act, to which I have already referred in detail, are neither clear nor consistent in expression. The Act appears to entitle the former owners of the sugar, which has been acquired, to receive payment of the "value" of the sugar; see the proclamation in the schedule to the Act, and ss.7 and 14. Section 6 speaks not of "value" but of "prices". However, both the proclamation in the schedule and s.6 indicate that the value is to be "determined and declared", or the prices "fixed", by a proclamation, which must of course be made by the Governor in Council. It is true that the proclamation in the schedule may be modified, but that can only be done by another proclamation under s.10 and the conclusion is, in my opinion, inescapable that the value or price to be paid to the owners of the acquired sugar is to be determined or fixed by the Governor in Council by proclamation. (at p480)

21. In a series of cases under the National Security (Prices) Regulations, this Court discussed the manner in which the power given by those regulations to fix prices might validly be exercised. It is enough to refer to King Gee Clothing Co. Pty. Ltd. v. The Commonwealth (1945) 71 CLR 184 and Cann's Pty. Ltd. v. The Commonwealth (1946) 71 CLR 210 . In King Gee Clothing Co. Pty. Ltd. v. The Commonwealth, Dixon J. said (1945) 71 CLR, at p 197

"But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price."

In the same case, Williams J. (1945) 71 CLR, at p 208 , repeated an earlier statement that "a bare power to 'fix' a price cannot be validly exercised without naming a money sum, or prescribing a certain standard by the application of which it can be calculated or ascertained definitely." In Cann's Pty. Ltd. v. The Commonwealth, Latham C.J. said (1946) 71 CLR, at p 217 that where the prices are fixed by reference to a standard, "the standard must not be such that any element therein can be ascertained only by the exercise of discretion in apportionment, allotment, allocation or otherwise." There are, of course, points of distinction between the power conferred by the National Security (Prices) Regulations and that conferred by the Act. In particular, the former enactment imposed a duty, whereas the lattter conferred a right. Nevertheless, the cases under those regulations provide assistance in deciding the present questions. They support the view that the Governor in Council cannot be said to "determine and declare" the value of the acquired sugar, or to "fix" the price for it, if he delegates to the Sugar Board the power to determine that value or price by reference to a standard which is not certain or objective but which requires the Board to exercise a wide discretion. (at p481)

22. When a discretionary power is conferred by statute upon the Executive Government, or indeed upon any public authority, the power can only be validly exercised by the authority upon whom it was conferred. Its exercise cannot be delegated to someone else, unless the statute, upon its proper construction, permits such delegation. Some cases which illustrate this proposition, such as Allingham v. Minister of Agriculture (1948) 1 All ER 780; 64 TLR290 ; may perhaps be regarded as applying the maxim delegatus non potest delegare, whereas others, such as Ratnagopal v. Attorney-General (Ceylon) (1970) AC 974 , may simply provide authority for the obvious proposition that a statute which on its proper construction confers a power on A does not permit the power to be exercised by B. There are cases in which powers conferred on a Minister have been held to be exercisable by a responsible official of his department (see Carltona Ltd. v. Commissioners of Works (1943) 2 All ER 560, at p 563 ; Reg. v. Skinner (1968) 2 QB 700 ; it is unnecessary to discuss those authorities, for this of course is not such a case. A power given to one person to determine a value or fix a price will not be validly exercised by allowing another to exercise a wide and unreviewable discretion in determining that price, although the person upon whom the power is conferred may, instead of actually fixing a money sum himself, "lay down a method of finding it which will produce the same result whoever applies it, so long as he uses it correctly.": Cann's Pty. Ltd. v. The Commonwealth (1946) 71 CLR, at p 228 (at p481)

23. It is clear that, by the provisions of the third proclamation, the Governor in Council did not either directly fix the price or lay down an objective standard which could be applied by the Sugar Board certainly and mechanically. It left to the Sugar Board a discretion so wide that there hardly seems room to doubt that the price, when fixed, was fixed by the Sugar Board and not by the Governor in Council. (at p481)

24. It would therefore be clear that the prices fixed in accordance with the third proclamation were not validly fixed for the purposes of the Act, if it were not for the fact that s.13(2) of the Act requires every proclamation made under the Act to be read as one with it and to be construed as being of equal validity. As at present advised, I incline to the view expressed by Barton J. in Duncan v. Theodore (1917) 23 CLR 510, at p 524 , that this provision "refers only to proclamations valid in the sense of consistence with the provisions of the Act". Although the decision of this Court in that case was overruled in the Privy Council (see Theodore v. Duncan (1919) 26 CLR 276;(1919) AC 696 their Lordships' judgment does not appear to be inconsistent with what Barton J. said on this point. There are other authorities which suggest that provisions such as those of s. 13 (2) of the Act would not place the validity of the proclamation beyond question in so far as it was inconsistent with the provisions of the Act itself: see In re a Solicitor (1953) St R Qd 149, at pp 159-162 and cases there cited. However, the effect of s. 13(2) was not dealt with in the judgment now under appeal and was not argued before us, and, for reasons that will shortly appear, I need not finally decide whether the provisions of that sub-section validate the third proclamation and with it the determinations of the Sugar Board made thereunder. (at p482)

25. The fourth proclamation was by itself a valid exercise by the Governor in Council of the power to determine the prices to be paid for sugar acquired under the Act. That was not contested. However, it was said that if the third proclamation was valid - even if the powers given by it had not been validly exercised - the fourth proclamation was invalid, because the Act authorized the Governor in Council to fix the price for the sugar acquired in a season only once. The learned judges in the Full Court held that the power given to the Governor in Council was of the type which was exhausted once it had been fully exercised, but, with all respect, I gravely doubt the correctness of that view. But the model proclamation in the schedule to the Act, and the actual proclamation of acquisition, contemplate that the values will be declared by a further "proclamation or proclamations", and by s. 13 (1) of the Act the Governor in Council has power "from time to time" to make all such proclamations as he shall think fit for giving full effect to the Act. Section 24 of the Acts Interpretation Act of 1954 (Q.), as amended, provides, inter alia, that where any Act confers a power to make any instrument (including any proclamations), the power shall, unless the contrary intention appears, be construed as including a power exercisable in like manner and subject to the like conditions, if any, to repeal, rescind, revoke, alter, vary, amend or otherwise modify any such instrument. There can, therefore, be no doubt that more than one proclamation can validly be made to determine the price of sugar acquired in any season. However, the Full Court held that, although the Governor in Council might divide the sugar into quotas and fix the price of each by separate proclamations, he could not fix the price of a season's sugar more than once, and that once he had determined the price of the whole of the sugar acquired, his powers were exhausted. In reaching this conclusion, their Honours were influenced by the consideration that otherwise the Governor in Council could now fix a new price for the sugar made in 1915 or in any year since then. Assuming that this is so, the result would not necessarily be unjust or inconvenient in the unlikely event that the Governor in Council re-determined the prices of sugar acquired long ago. If the new price exceeded the old, it might be assumed that it was proper that the increase should be paid out of consolidated revenue. If the new price were a reduction, there would not seem to be any principle of law under which those who had received the moneys in accordance with an earlier proclamation would be bound to repay them whereas those who had paid the moneys would appear to have the protection of s. 7 of the Act. If the argument of inconvenience is to be considered, it must be remembered that if the power once used is exhausted, the Governor in Council would have no power to correct an arithmetical error or to increase the price when the actual proceeds of overseas sales greatly exceeded the estimates, even if the correction or increase were sought to be made before anything had been done to give effect to the original proclamation. The express provisions of the Act appear to me to be inconsistent with the suggestion that the Governor in Council becomes functus officio once he has made a proclamation fixing the price of all the sugar acquired in any season. However, this again is a question that it is not strictly necessary to decide. (at p483)

26. If the view that I have expressed as to the width of the discretion given by the third proclamation to the Sugar Board is correct, the appellants find themselves in a dilemma. If the third proclamation was invalid, the fourth proclamation is clearly valid, and the appellants' claim must fail. However, if the third proclamation was valid, the purported determination by the Sugar Board of the values of the second and third quotas of sugar was within the wide discretion conferred on the Board and was itself valid. On either assumption, the prices of $213.10 and $130.10 per tonne fixed respectively for second and third quota sugar, both by the Sugar Board pursuant to the third proclamation and by the Governor in Council by the fourth proclamation, are the prices which the appellants are entitled to receive under the Act. (at p484)

27. For the reasons which I have given, the Full Court correctly allowed the demurrer and gave judgment for the respondent. I would dismiss the appeal. (at p484)

STEPHEN J. I agree that, for the reasons stated by Gibbs J., this appeal should be dismissed. (at p484)

MASON J. I would dismiss this appeal for the reasons given by Gibbs J. (at p484)

WILSON J. I would dismiss this appeal for the reasons given by Gibbs J. (at p484)

Orders

Appeal dismissed with costs.