WHEAT MARKETING: COMPULSORY POOL WHEAT MARKETING: SUPPLEMENTARY OPINION: VALIDITY OF COMPULSORY POOL PROVIDING FOR compulsory acquisition of wheat by the Commonwealth: EXTENT OF ACQUISITION POWER: INCIDENTAL POWER
Constitution s 51(i), (xxxi), (xxxix)
Mr. Fullagar’s attention was drawn to the provisions of section 51 paragraphs (i), (xxxi) and (xxxix) of the Constitution which provide that:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:
(i) trade and commerce with other countries and among the States:
(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:
(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal judicature, or in any Department or officer of the Commonwealth.
Mr. Fullagar was asked to advise whether, in view of these provisions:
- any scheme for a compulsory pool which provided for compulsory acquisition of wheat by the Commonwealth would be valid in view of the terms of paragraph (xxxi) above, seeing that the only ‘purpose’ that could be relied on as being, within that paragraph, a purpose in respect of which the Parliament had power to make laws was the purpose of interstate and foreign trade as set out in paragraph (i); or, alternatively,
- independently of paragraph (xxxi), the Commonwealth had power, under paragraphs (i) and (xxxix), to make laws with respect to the compulsory acquisition of wheat the subject of interstate or foreign trade.
Mr. Fullagar’s opinion on these subjects has been telephoned from Melbourne and is as follows:
- The power of compulsory acquisition can only be exercised as incidental to some other substantive power of the Parliament. There is no independent power of compulsory acquisition.
- The first alternative (sc. referred to in my previous opinion)(2) would, as I understand it, involve both Commonwealth and State Boards. If the Commonwealth Board could get only interstate wheat, and the State Board could get only domestic and overseas wheat, the Commonwealth power of acquisition would, as I see it, be incidental to section 51(i).
- The second alternative (sc. referred to in my previous opinion) would involve only one Board as I understand it. Both Commonwealth and State legislation would be in general terms. The Acts Interpretation Acts would make the Commonwealth Act operative to defeat anybody who alleged interference with interstate trade. The State Acts Interpretation Acts would make the State Acts operative to defeat anybody who alleged interference with domestic trade.
[Vol. 28, p.106]
(1) This date is attributed. The opinion is undated in the Opinion Book, but its position in relation to adjacent opinions suggests it was written sometime in early March 1935.
(2) Opinion No. 1575.
(3) The opinion is unsigned in the Opinion Book but is a file note by an unnamed officer of a telephone conversation with Mr Fullagar. The title of the opinion in the Opinion Book is ‘Supplementary Opinion by Mr Fullagar’.