Opinion Number. 1591



Key Legislation

Commerce (Trade Descriptions) Act 1905 s 13: Commerce (Trade Descriptions) Regulations: constitution s 99: Customs (Prohibited Exports) Regulations

The Secretary, Department of Commerce

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

I have to inform you that the Tasmanian Government has suggested that arrangements be made for all fresh fruit submitted in Tasmania for export under the Commerce (Trade Descriptions) Act and Regulations, and rejected as unfit for export, be compulsorily sent to a Government depot for re-packing under Commonwealth supervision, and the owners of the fruit charged with the cost of the re-packing. It is claimed by Tasmania that if such were done the export of inferior fruit would be reduced to a minimum.

In reply, the Premier of Tasmania was informed that section 13 of the Commerce (Trade Descriptions) Act 1905–1933 made provision whereby the fruit could be dealt with in the manner desired. Attention, however, was directed to section 99 of the Commonwealth Constitution, which prevents preference being given to one State or any part of a State over another State or part thereof. It was thought, therefore, that if section 13 of the Commerce (Trade Descriptions) Act was enforced in Tasmania similar action would have to be taken in all the other States.

The inspection of export fruit in Tasmania is conducted at four main shipping centres, viz. Hobart, Port Huon, Launceston and Beauty Point, where adequate accommodation for the fruit and the inspection services is provided, and no difficulty, it is considered, would be experienced in effectively administering a proposal such as that submitted by the Tasmanian authorities.

On the mainland conditions are entirely different from those existing in Tasmania. In Victoria, for instance, owing to the scattered fruit-growing areas, the long distances to the shipping ports, and the lack of facilities at the Victorian wharves for fruit inspection, fruit inspectors are sent to the various fruit areas where the inspection of the fruit is conducted at the country railway stations. No facilities exist in the country districts for the compulsory re-packing of the rejected fruit, consequently all fruit not passed for export is immediately released and is taken back to the orchards. The fruit that is passed for export is immediately railed to the shipside, where a further cursory examination takes place in order to detect any damage during transit. Fruit rejected at the wharves is released to the owners as there are no facilities there for re-packing.

Similar conditions exist in the other mainland States, and it is considered impracticable for the proposal made by the Tasmanian government to be given effect to in any of the States other than Tasmania.

In consequence of the position as outlined above, advice would be appreciated as to whether, in your opinion, it would be practicable to give effect to the Tasmanian proposal and restrict the arrangements to Tasmania without contravening the provisions of section 99 of the Constitution.

Section 13 of the Commerce (Trade Descriptions) Act is as follows:

13. All goods to which any false trade description is applied are hereby prohibited to be exported, and shall, if exported, or entered for export or put on board any ship or boat for export, or brought to any wharf or place for the purpose of export, be forfeited to the King:

Provided that the Secretary, or on appeal from him, the Minister of State for Markets, may, if he is satisfied that the owner of any goods, which have been seized as forfeited under this section did not knowingly act in contravention of this Act, permit the correction of the false trade description, and may, when the correction has been made to his satisfaction, order the release of the goods, subject to the payment by the exporter of the expenses of the seizure and thereupon the forfeiture shall be remitted.

Section 99 of the Constitution is 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 part thereof.

In determining whether section 99 has been contravened it is necessary to look at the legislation which is in question and ascertain whether that legislation in terms authorizes a preference to one State or part over another State or part.

Where the legislation applies generally throughout the Commonwealth no question of preference can arise. Neither is the Constitution contravened where the legislation contemplates the exercise in all parts of the Commonwealth of a discretion by any authority set up by Commonwealth law, even though the discretion may, in fact and upon the merits of the cases, be exercised in some States but not in others.

I note that the Premier of Tasmania has been informed that section 13 of the Commerce (Trade Descriptions) Act 1905–1933 authorises the compulsory re-packing of fruit submitted for export in Tasmania. The object of section 13 is to prevent the use of false trade descriptions and to provide means for having a false trade description corrected.

I understand that when it is found on inspection that any fruit does not accord with the trade descriptions affixed to the container it is desired to have the fruit re-packed under Commonwealth supervision. When the re-packing of any container is complete the goods in that container are then different from the goods originally packed therein. This method of dealing with the situation is not one which appears to be contemplated by section 13.

What is proposed to be done appears to be rather the substitution of goods so as to make them accord with the trade description than the correction of the trade description so as to make it correctly describe the goods.

The re-packing is proposed to be done by the Commonwealth whereas the section contemplates that the corrective action shall be undertaken by the exporter.

For the above reasons I take the view that the action contemplated is not authorised by section 13.

It appears that the matter requires legislation to enable the proposed course to be taken. Possibly the matter could be dealt with by an amendment of the Customs (Prohibited Exports) Regulations. Preferably, however, the matter should be dealt with by an amendment of the Commerce (Trade Descriptions) Act.

If a proviso in the following terms were substituted for the existing proviso and a new sub-section added, effect could be given, I think, to the suggestion made by the Tasmanian Government:

Provided that the Secretary may, in the case of goods seized as forfeited under this section, upon application made to him by the owner of the goods, correct, or permit the correction of, the false trade description, either by re-packing the goods or otherwise, and thereupon the forfeiture shall be remitted.

(2) Where the Secretary corrects a false trade description of goods seized as forfeited under this section, the cost of the seizure and of the correction of the false trade description shall be a debt due to the Crown by the owner of the goods and recoverable from him in any court of competent jurisdiction.

The section as so amended is capable of general application and contains no provision which draws a distinction between goods of any one State and goods of any other State. On the authority of James v. the Commonwealth 41 C.L.R. p. 442 (in which the effect of section 99 of the Constitution is discussed), I advise that the provision suggested is valid.

[Vol. 29, p. 92]