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Tasmania v Victoria

Tasmania v Victoria

Case [1935] HCA 4 6 March 1935

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Standing

Statutory Construction

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52 CLR 157

THE STATE OF TASMANIA AND ANOTHER PLAINTIFFS

THE STATE OF VICTORIA AND ANOTHER DEFENDANTS. Constitutional Law-Freedom of trade, commerce and intercourse among the States-

State Act authorizing proclamation prohibiting importation into Victoria of any vegetable likely to introduce disease-Proclamation prohibiting importation of Tasmanian potatoes-Validity-The Constitution (63 &64 Vict. c. 12), secs. MELBOURNE, 92, 112-Vegetation and Vine Diseases Act 1928 (Vict.) (No. 3797), sec. 4. High CourtPractice-Court equally divided-Authority of decision in subsequent

Sec. 4 of the Vegetation and Vine Diseases Act 1928 (Vict.) empowers the Governor in Council of the State by proclamation to prohibit the importation, introduction or bringing into Victoria of any tree, plant or vegetable which is, McTiernan JJ. in the opinion of the Governor in Council, likely to introduce any disease or insect into Victoria, and at any time to alter or revoke such proclamation. Sub-sec. 3 makes it an offence to bring into Victoria any vegetable contrary to any prohibition contained in any proclamation. The Governor in Council, by a proclamation which recited that in his opinion the introduction of potatoes from Tasmania was likely to introduce disease into Victoria, prohibited the importation, introduction or bringing into Victoria of potatoes from Tasmania. The State of Tasmania and the Attorney-General thereof brought an action in the High Court against the State of Victoria and the Minister for Agriculture of that State for a declaration that the proclamation was invalid. The State of Tasmania did not itself trade in potatoes with Victoria.

52 CLR 158

(2) By Starke J., that (a) the Vegetation and Vine Diseases Act did not contravene sec. 92 of the Constitution, but the proclamation was invalid because it was not authorized by the Act; (b) the action was properly brought by the Attorney-General of Tasmania in SO far as it alleged a contravention of the Constitution, but not in so far as it alleged that the proclamation was not authorized by sec. 4 of the Act.

Held, further, that the proclamation was not on inspection law within the meaning of sec. 112 of the Constitution.

Per Rich and Dixon JJ.: A decision given on an equal division of opinion in the High Court is not a precedent binding on the Court in subsequent cases.

Ex parte Nelson [No. 1], (1928) 42 C.L.R. 209, discussed. DEMURRER.

The State of Tasmania brought an action against the State of Victoria and the Hon. John Allan, Minister for Agriculture for the State of Victoria. The Attorney-General for the State of Tasmania was subsequently added as a plaintiff.

The statement of claim was substantially as follows: :- 1. Prior to October 1932 trade in potatoes had been carried on between growers and merchants in the State of Tasmania and merchants in the State of Victoria, whereby potatoes grown in Tasmania were from time to time imported into Victoria for con- sumption in Victoria.

2. By a proclamation purporting to be made pursuant to the Vegetation and Vine Diseases Act 1928 (Vict.) on 31st October 1932…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tasmania v Victoria

Details

AGLC: Tasmania v Victoria [1935] HCA 4
Case: [1935] HCA 4
Decision Date: 6 March 1935

CaseChat Overview and Summary

The State of Tasmania and its Attorney-General brought an action in the High Court against the State of Victoria and its Minister for Agriculture. The dispute concerned a proclamation issued by the Victorian Governor in Council, which prohibited the importation of potatoes from Tasmania into Victoria. The plaintiffs sought a declaration that this proclamation was invalid.

The legal issues before the Court were whether the Victorian Vegetation and Vine Diseases Act 1928, and specifically section 4 thereof, were validly enacted by the Victorian Parliament, and whether the proclamation prohibiting the importation of Tasmanian potatoes was authorised by that Act. Furthermore, the Court had to determine if the prohibition, even if authorised by the Act, contravened section 92 of the Commonwealth Constitution, which guarantees freedom of trade, commerce, and intercourse among the States. The Court also considered whether the proclamation constituted an "inspection law" within the meaning of section 112 of the Constitution.

A majority of the High Court (Gavan Duffy C.J., Evatt and McTiernan JJ.) held that the proclamation was invalid because it exceeded the powers granted by section 4 of the Vegetation and Vine Diseases Act. They reasoned that the Act authorised the prohibition of specific plants or vegetables likely to introduce disease, but not a prohibition based solely on the place of origin, such as "potatoes from Tasmania." The Court further found that the proclamation, by imposing an indefinite and absolute prohibition on the importation of Tasmanian potatoes regardless of their disease status, directly infringed section 92 of the Constitution. They distinguished the case from *Ex parte Nelson* [No. 1] on the basis that the latter involved conditional restrictions rather than an absolute prohibition. Rich J. also found that the proclamation violated section 92, holding that the prohibition was a direct and immediate restriction on inter-State trade. Starke J. found the Act itself to be valid but the proclamation invalid as it was not authorised by the Act.

The Court also addressed the standing of the plaintiffs, with a majority finding that the Attorney-General of a State is entitled to seek relief in the High Court when another State's actions prevent its citizens from marketing their goods in that other State, particularly when a constitutional question under section 92 is involved. The defendants' demurrer to the statement of claim was overruled. The Court also noted that a decision given on an equal division of opinion in the High Court is not binding on the Court in subsequent cases.

Orders