Opinion Number. 1513

Subject

Regulation of Banana Trade powers of commonwealth and states respectively to establish and enforce grades of bananas: interstate trade: intrastate trade: state quarantine powers in relation to interstate trade: state powers in relation to resale within state of fruit subject of interstate trade

Key Legislation

Diseases in Plants Act 1929 (qld)

Date
Client
The Secretary, Department of Markets

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

With reference to the Solicitor-General’s Opinion No. 180 of 1931(1) regarding the powers of the States to make regulations in connection with the grading of bananas intended for intrastate or interstate trade, I have to advise that as a result of that opinion the Committee of Direction of Fruit Marketing in Queensland has expressed the view that the powers of the Commonwealth and the States with regard to interstate and intrastate trade respectively are as follows:

  1. The Commonwealth has power to establish grades for bananas (and other fruits) which would be applicable to all States for interstate trade but not for intrastate.
  2. Any State would have the right to set up and enforce its own grade standards for fruit grown and sold in its own State.
  3. No State could set up grade standards for fruit sent outside that State to another State.
  4. No State could set up grade standards for any fruit sent into that State from another State.
  5. If the foregoing assumptions be correct, a State would only be permitted to prohibit the sale of fruit from another State under the ‘Diseases in Plants Act’.

The Committee of Direction asks that a further opinion be obtained from the Solicitor-General on these points in order that the position may be clearly defined.

Attached hereto is copy of the Queensland, Victorian, and New South Wales regulations for bananas.

In my opinion, paragraphs (a) to (e) of the above memorandum correctly state the law as declared by the High Court. (See W. & A. McArthur v. State of Queensland, 28 C.L.R. 530; James v. The Commonwealth, 41 C.L.R. 442; Roughley v. State of New South Wales, 42 C.L.R. 162; and Ex-parte Nelson, 42 C.L.R. 209).

I presume that paragraph (d) refers to fruit which is the subject of interstate trade, as it is probable that a State could set up grade standards applicable to such fruit after it had ceased to be the subject of interstate trade, e.g. upon re-sale by a person resident in the State.

[Vol. 25, p. 676]

1. Opinion [Vol. 25, p. 368] not published.