O'Sullivan v Noarlunga Meat Ltd
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O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR
565 was a case decided in the High Court of Australia
regarding the scope of the trade and commerce power, under s 51(i)
of the Australian Constitution
, and inconsistency between Commonwealth and State laws, under s. 109
.
), s 52a, because it did not hold a State
licence for slaughtering stock. All premises outside the metropolitan area "for the purpose of slaughtering stock for export as fresh meat
in a chilled or frozen condition" were required to obtain a licence from the State Agriculture Minister. However, the defendant company was registered under the Commerce (Meat Export) Regulations (Cth). Regulation 4B prohibited the exportation of meat unless an export permit had been granted, and regulation 5 required that all premises used for the slaughter of meat to be registered.
The defendant company argued that the State act was invalid by virtue of inconsistency with the Commonwealth regulations, which is dealt with in s 109 of the Constitution
.
Regulation 5 does not fall under the direct head of power. Instead, it falls within the implied incidental power, which was best expressed in D'Emden v Pedder
(1904) 1 CLR 91 at p 110. Fullagar J
, with whom Dixon CJ
and Kitto J
concurred, stated that the Commonwealth may control any steps leading to the export itself (generally labelled as "production") that may affect "beneficially or adversely" Australia's export trade
. This includes provisions to control the quality of meat being exported, which may involve regulation of such stages as packaging and handling. In fact, it may be necessary to "enter the factory or the field or the mine" to secure Australia's export industry.
In general regulation of production may occur where there is an objectively different method of production between meat destined for home and foreign consumption, but Fullager J was clear in restricting the application of the principle to the specific factual circumstances at hand.
Although the court was split 3-3, there was held to be inconsistency by a statutory majority.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
565 was a case decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
regarding the scope of the trade and commerce power, under s 51(i)
Section 51(i) of the Australian Constitution
Section 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
of the Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, and inconsistency between Commonwealth and State laws, under s. 109
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
.
Background
Noarlunga Meat Ltd was charged with contravening the Metropolitan and Export Abattoirs Act 1936 (SASouth Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
), s 52a, because it did not hold a State
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
licence for slaughtering stock. All premises outside the metropolitan area "for the purpose of slaughtering stock for export as fresh meat
Meat
Meat is animal flesh that is used as food. Most often, this means the skeletal muscle and associated fat and other tissues, but it may also describe other edible tissues such as organs and offal...
in a chilled or frozen condition" were required to obtain a licence from the State Agriculture Minister. However, the defendant company was registered under the Commerce (Meat Export) Regulations (Cth). Regulation 4B prohibited the exportation of meat unless an export permit had been granted, and regulation 5 required that all premises used for the slaughter of meat to be registered.
The defendant company argued that the State act was invalid by virtue of inconsistency with the Commonwealth regulations, which is dealt with in s 109 of the Constitution
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
.
Trade and commerce power
The Commonwealth has the power to make laws with respect to "trade and commerce with other countries, and among the States", by s 51(i) of the Constitution. This power authorises the prohibition the exports of certain commodities, and by extension the prohibition of commodities with certain restrictions, so regulation 4B is within power.Regulation 5 does not fall under the direct head of power. Instead, it falls within the implied incidental power, which was best expressed in D'Emden v Pedder
D'Emden v Pedder
D'Emden v Pedder was a significant Australian court case decided in the High Court of Australia on 26 April 1904. It directly concerned the question of whether salary receipts of federal government employees were subject to state stamp duty, but it touched on the broader issue within Australian...
(1904) 1 CLR 91 at p 110. Fullagar J
Wilfred Fullagar
Sir Wilfred Kelsham Fullagar, KBE, KC was a judge on the High Court of Australia.-Early Life and Studies:...
, with whom Dixon CJ
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
and Kitto J
Frank Kitto
Sir Frank Walters Kitto, AC, KBE, QC , Australian judge, was a Justice of the High Court of Australia.Kitto was born in Melbourne in 1903, but his family moved to Sydney, when his father James Kitto became the Deputy Director of Posts and Telegraphs in New South Wales. There he was educated at...
concurred, stated that the Commonwealth may control any steps leading to the export itself (generally labelled as "production") that may affect "beneficially or adversely" Australia's export trade
Economy of Australia
The economy of Australia is a developed, modern market economy with a GDP of approximately US$1.23 trillion. In 2011, it was the 13th largest national economy by nominal GDP and the 17th largest measured by PPP adjusted GDP, representing about 1.7% of the World economy. Australia was also ranked...
. This includes provisions to control the quality of meat being exported, which may involve regulation of such stages as packaging and handling. In fact, it may be necessary to "enter the factory or the field or the mine" to secure Australia's export industry.
In general regulation of production may occur where there is an objectively different method of production between meat destined for home and foreign consumption, but Fullager J was clear in restricting the application of the principle to the specific factual circumstances at hand.
Inconsistency
Fullagar J noted that it was possible to obey both sets of laws simultaneously, by acquiring both State and Commonwealth licenses. However, it was his opinion that the regulations expressed an intention to "completely and exhaustively" cover the field with regards to the regulation of such premises; he found the detailed regulations compelling in this regard. Furthermore, the State law would have acted to deny the rights granted by a certificate obtained under the Commonwealth regulations.Although the court was split 3-3, there was held to be inconsistency by a statutory majority.
See also
- Section 51(i) of the Australian ConstitutionSection 51(i) of the Australian ConstitutionSection 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
- Section 109 of the Australian ConstitutionSection 109 of the Australian ConstitutionIn Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
- Australian constitutional lawAustralian constitutional lawAustralian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....