Opinion Number. 1400

Subject

DISCRIMINATION OR PREFERENCE EXPORT OF DAIRY PRODUCE: EXPORT LICENCE: CONDITION THAT LICENSEE WITHHOLD FROM SHIPMENT PROPORTION OF DAIRY PRODUCE DETERMINED BY DAIRY PRODUCE CONTROL BOARD: PROPOSAL TO NOTIFY LICENSEES IN ONE STATE ONLY TO WITHHOLD SHIPMENT OF DAIRY PRODUCE: WHETHER PREFERENCE TO ONE STATE OR PART THEREOF OVER ANOTHER STATE OR PART THEREOF

Key Legislation

AIRY PRODUCE EXPORT CONTROL (LICENCES) REGULATIONS Schedule form A:<span class="char-style-override-9"> </span>DAIRY PRODUCE EXPORT CONTROL ACT 1924 s 114: CONSTITUTION s 99

Date
Client
The Secretary, Department of Markets and Migration

The Secretary, Department of Markets and Migration, has forwarded the following memorandum for advice:

I desire to invite attention to condition (5) of form A in the Schedule to the Dairy Produce Export Control (Licences) Regulations, Statutory Rules 1925, No. 124 which provides as follows:

That the licensee shall, after fourteen days’ notice from the Board, withhold from the shipments such proportion of Dairy Produce as the Board determines.

In view of the serious position of Dairy Produce on the United Kingdom market, the Dairy Produce Control Board desires to limit shipments of the Dairy Produce from one particular State, but not from the Commonwealth, and I shall be glad if you will furnish me with an opinion as to whether it is considered there is any legal objection to such a course being taken.

Section 14 of the Dairy Produce Export Control Act 1924 provides that the Governor-General may by proclamation prohibit the export from the Commonwealth of dairy produce except in accordance with a licence issued by the Minister, subject to such conditions and restrictions as are prescribed, after recommendation to the Minister by the Dairy Produce Control Board.

In pursuance of this section a Proclamation has been issued by the Governor-General, and regulations have been made prescribing the conditions upon which dairy produce may be exported by licensees. One of the conditions prescribed is–

That the licensee shall, after fourteen days’ notice from the Board, withhold from shipment such proportion of dairy produce as the Board determines.

I understand that, in pursuance of this provision, the Board proposes to notify licensees in one State only to withhold shipment of dairy produce.

The course proposed would have the effect of giving to the other States a preference over the State from which export was limited, and would therefore be inconsistent with section 99 of the Constitution, which reads as follows:

The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

The action proposed by the Board is expressly forbidden by the Constitution. It could not be authorized by an Act, and, a fortiori, it cannot be done under the authority of a regulation made under an Act.

It must be assumed that, in passing the Act, Parliament did not intend to contravene the Constitution, and that it was not intended by the Regulations to authorize any action inconsistent with the Constitution.

In my opinion, therefore, the action contemplated by the Board would be ultra vires.

[Vol. 22, p. 754]