The Secretary, Department of Commerce, has forwarded the following memorandum to me for advice:

It has been brought under the notice of this Department that the New South Wales Metropolitan Meat Industry Board has increased the scale of inspection fees on meat forwarded or brought into Metropolitan Abattoir area as from 1/11/33.

It is understood that prior to 1/11/33 the fees actually charged by the Board were less than the full rates permitted by the Board’s by-laws and that the increased scale of charges represent the full rates which the Board may charge.

The following particulars are furnished of the different fees:

MEAT	Rates prescribed as from 1.11.33 by Board Reg.		Actual rates charged by Board prior to 1.11.33
	s.	d.	s.	d.
Beef per quarter	1	0		6
Beef 50 lbs. or portion of		6		3
Mutton per carcase		4		2
Mutton all other 50 lbs. or portion of		6		3
Veal under six months–per carcase	1	0		6
Veal all other 50 lbs. or portion of		6		3
Pork per carc. over 30 lbs.	2	0	1	0
Pork per carc. under 30 lbs.	1	0		6
All other Pork 50 lbs. or portion of	1	6		9
Bacon per side (green or smoked)		6		3
Bacon all other 50 lbs. or portion of		9		6
Meat in tins @ per 50 lbs.		6		3

Representations have been received from the Master Butchers’ Association of New South Wales that the retail butchering trade is vitally concerned with the importation of meat from other States and that about one-half of the beef at present being purchased by retail butchers in Sydney is imported from Queensland. The Association claims that there is no justification for the increased fees which the N.S.W. Metropolitan Meat Industry Board is charging on such meat and they consider that the Board’s action is an interference with trade and commerce between the States of New South Wales and Queensland.

Similar representations have been made by the United Graziers’ Association of Queensland on behalf of Queensland meat producing and handling interests. These interests state that the increased fees are unwarranted and an unreasonable charge for the services rendered. The fees are said to be hampering interstate trade and adversely affecting Queensland
meat producers.

The two organisations referred to have appealed to the Commonwealth Government to take action to have the N.S.W. Meat Industry Board repeal the increased scale of charges, and I should be glad of your opinion as to whether the action taken by the Board may be considered a breach of the Commonwealth Constitution Act as affecting interstate trade. If such is the case, I should appreciate advice as to the power of the Commonwealth to intervene and the appropriate authority which should take the initiative in this connection.

The facts appear to be that some of the meat forwarded to the Metropolitan Abattoir Area, New South Wales is slaughtered and chilled in Queensland. Fees are charged in respect of the meat in pursuance of Regulations made under the Meat Industry Act 1915 (NSW), and I am asked to advise whether the Regulations are an infringement of the Constitution and whether the Commonwealth may intervene in the matter.

Section 22(1) of the Meat Industry Act 1915 (NSW) reads as follows:

The Board shall cause to be inspected the carcases of all animals slaughtered within or brought into the metropolitan abattoir area … and may charge such fees therefore as are prescribed.

Regulation 38 of the By-laws made under this Act provides as follows:

38. Fees not exceeding the rates set out hereunder shall be paid by the owner of any meat forwarded or brought into the Metropolitan Abattoir Area.

(Here follows a table of fees).

Sections 92 and 112 of the Constitution (so far as they are material) read as follows:

92. On the imposition of uniform duties of customs, trade, commerce and intercourse among the States … shall be absolutely free.

112. After uniform duties of customs have been imposed, a State may levy … on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.

The regulation clearly applies to goods sent from another State, but applies only to goods entering into part of New South Wales, and not into the State as a whole.

It is clear that apart from section 112 of the Constitution the imposition of fees on meat coming into New South Wales from Queensland would be a contravention of section 92, and the imposition of fees on meat coming into part only of the State (e.g. the Metropolitan Abattoir area) would also amount to a contravention of that section.

It follows therefore that regulation 38, since it imposes fees on meat brought from one State into part of another State, is invalid, unless it comes within the saving operation of section 112.

It will be noted that the regulation does not state expressly the purpose for which the fees are imposed, but I think that it may be implied, reading section 22 of the Meat Industry Act 1915 and regulation 38 together, that the fees are charged for the inspection referred to in that section, and are, therefore, charges for executing the inspection laws of the State.

I do not think it makes any difference that the fees are imposed only in respect of goods entering part only of a State. Duncan v. State of Queensland, 22 C.L.R. 556 at p. 588 per Barton J., ‘The truth is that whether the charges are made on goods inspected as they pass into or out of the State or on goods inspected in any other part of the State, they are not taxes but merely compensation for services rendered’.

It follows therefore that the regulation comes within the ambit of section 112 and is valid.

The consequences mentioned in section 112 follow, namely, that the net produce of the charges is for the use of the Commonwealth and the Commonwealth may, by appropriate legislation, annul the Regulations so far as it imposes fees on meat brought into New South Wales from another State.

Although the State has power to levy inspection fees, the imposition of fees out of all proportion to the services rendered would amount to converting ‘the inspection laws into instruments for the fettering of interstate commerce’, and the regulations would then be void under section 92, notwithstanding section 112. In such circumstances, it would be open to any person or association affected to secure by appropriate proceedings a declaration from the High Court that the regulations were void. It is not desirable for me, however, to express any opinion as to the result of any such proceedings, especially as there are no facts before me which would enable me to say whether the fees are justified by the services rendered or not.

[Vol. 27, p. 144]