Opinion Number. 1615


Regulation of primary products
Powers of commonwealth with respect to regulation of establishment or extension of meat works: power of australian meat board to regulate output of meat works: trade and commerce power: powers in relation to manufacture of products: preference to or discrimination between states

Key Legislation

Commerce (Meat Export) Regulations 1923: Meat Export Control Act 1935 s 17: constitution ss 51(i), 99

The Secretary, Department of Commerce

The Secretary of the Department of Commerce has asked for my advice upon the following questions contained in a memorandum prepared by the Chairman of the Australian Meat Board:

  1. Whether the Commerce (Meat Export) Regulations, if so desired, could be amended by the inclusion of a provision to permit the Minister to refuse to approve of the establishment of any new meat export works or of any extensions to an existing works where, on the advice of the Australian Meat Board, he was satisfied that the new works or extensions that were planned were not in the best interests of the Australian Meat Export Industry?
  2. The words ‘not in the best interests of the Australian Meat Export Industry’ have been included in the above question so that in the event of the amendment being approved the Board would be able to consider each case on its merits, having regard to the position that may exist at any particular time in a particular State. For instance, the Board may at this juncture take the view that treatment facilities adequate to the position in Victoria are in existence, and therefore recommend that further works or extensions of works in that State be not sanctioned. On the other hand it is conceivable that in another State it may be desirable in the public interest to disregard the fact that existing facilities may be adequate and to recommend to the Minister that certain applications for new works be approved. Would the inclusion of the words ‘not in the best interests of the Meat Export Industry’ meet this position and avoid any possibility of the decisions of the Board or of the Minister being challenged successfully in the Court?
  3. As an alternative to amending the Commerce (Meat Export) Regulations, could the Meat Export Control Act be amended so as to give this Board the power to decide what new works or extensions of existing works should be sanctioned?
  4. Is it within the power of the Commonwealth to make it compulsory for proprietors of privately-owned freezing works to slaughter and treat stock at reasonable rates for owners of stock who may at any time desire to export meat on consignment rather than sell outright to those freezing works?
  5. If the Commonwealth has the power referred to in (4), could the necessary legislation be made wide enough to compel the freezing works to make the necessary arrangements on behalf of the owner for the delivery of the meat from the works to ship’s side?
  6. Could provisions along the lines of (4) and (5) be included in the Meat Export Control Act and the Board made the authority to determine what would constitute fair and reasonable rates for treatment?
  7. Do you concur that, as stated in paragraph 25, section 17 of the Meat Export Control Act does not give the Board power to regulate or restrict the output of a particular works?

Paragraph 25 of the memorandum, referred to in the last question, is as follows:

25. According to our advice there is nothing in the above section or in fact elsewhere in the Act to authorise the control by the Board of the processing of stock for export or to regulate in any way the output of a particular works.

Under placitum (i) of section 51 of the Constitution the Commonwealth has power to make laws with respect to trade and commerce with other countries and among the States. It is generally accepted that the expression ‘trade and commerce’ does not include production or manufacture. Commerce only begins where production and manufacture end (Kidd v. Pearson, 128 U.S. 1).

I am of opinion that the establishment or extension of meat works relates to production or manufacture and not to commerce, and that the Commonwealth has therefore no power to legislate in the direction indicated in questions 1–3. It is also possible that any such legislation, if within the trade and commerce power, would be regarded as infringing section 99 of the Constitution (which forbids the Commonwealth, by any law or regulation of trade or commerce, to give preference to one State over another State), particularly if the action were taken as foreshadowed by question 2.

With respect to questions 4–6, the prices at which stock are to be treated relates to manufacture and not to commerce, and the Commonwealth thus has no power in the matter.

Question 7 asks whether the Board is empowered by section 17 of the Meat Export Control Act to regulate or restrict the output of a particular works. The section referred to is as follows:

    1. For the purpose of enabling the Board effectively to control the export of Australian meat, meat products, and edible offal, the Governor-General may make regulations prohibiting the export from the Commonwealth of any meat, meat products, or edible offal except by persons who hold licences issued by the Minister or by any person thereto authorised in writing by the Minister and subject to such conditions and restrictions as are prescribed after recommendation to the Minister by the Board.
    2. Any person who exports meat, meat products or edible offal from the Commonwealth in contravention of the regulations made in pursuance of this section (including the prescribed conditions and restrictions) shall be guilty of an offence.
    3. Penalty–Five hundred pounds

    4. Where the Minister is satisfied, on report by the Board that any person, to whom a licence under this section has been granted, has contravened or failed to comply with the prescribed conditions and restrictions, the Minister may cancel the licence.

The section authorises the making of certain Regulations by the Governor-General, the issue and cancellation of licences to export meat, and prohibits the exportation of meat except in accordance with the Regulations. It does not confer any powers on the Board in relation to freezing works.

The answers to the questions submitted are therefore as follows:

  1. No.
  2. Unnecessary to answer.
  3. No.
  4. No.
  5. Unnecessary to answer.
  6. No.
  7. Yes.

[Vol. 30, p. 240]