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

A letter has been received from the Australian Wheat Board, which is as follows:

Reference was made at a recent Meeting of my Board as to whether there was any constitutional or legal objection to a differentiation existing in the amounts received by growers in the different States as compensation for wheat acquired under the Wheat Plan.

A degree of differentiation will arise from the fact that the expenses of administration will vary in the different States. As an example, the rate of remuneration payable to country agents differs in each of the States–in N.S.W. it is 1-3/16ths penny; in Victoria 1¹⁄₈d.; in S.A. 1-3/16th penny and in W.A. 1d. per bushel. Having regard to these varying rates, it is obvious that the actual payments to growers in the different States will not be uniform.

It is understood that no constitutional or legal obstacle exists herein, but my Board would be glad to be fortified with the Opinion of the Commonwealth Solicitor-General on the point. Would you kindly obtain his opinion in the matter and furnish me with advice thereon in due course.

I should be glad if you would advise me on the matter.

The Wheat Acquisition Regulations purport to be made in pursuance of the powers conferred on the Governor-General by the National Security Act 1939, and all other powers him thereunto enabling. Regulation 14 provides for the expropriation of wheat by the Commonwealth subject to compensation, and regulation 19 provides for such compensation as the Minister, on the recommendation of the Australian Wheat Board, determines.

The only provisions of the Constitution which might be thought to raise any doubt as to the correctness of the view held by the Board are placitum (xxxi) of section 51, and section 99, which provide respectively as follows:

51. 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:

...

(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:

99. 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 any part thereof.

The National Security Act, and the Wheat Acquisition Regulations made thereunder, are, in my opinion, referable to the powers conferred by placita (vi) (the defence power) and (xxxi) (the acquisition power) of section 51 of the Constitution–aided perhaps by the incidental power conferred by placitum (xxxix). The regulations are not, therefore, in my opinion, a law or regulation of trade, commerce or revenue within the meaning of section 99.

In acquiring the wheat it is necessary, in order to comply with placitum (xxxi), that the acquisition should be on just terms. In view of the different economic factors applicable to different parcels of wheat scattered throughout Australia, I consider that it would not be possible to acquire all wheat on just terms if section 99 were to apply so as to require the compensation paid to be uniform.

The Commonwealth is constantly acquiring land pursuant to the power conferred by placitum (xxxi), and the question of just terms has frequently been considered by the High Court, but the question has always turned on the value of the land being acquired and has never, so far as I am aware, been related in any way to the compensation which the Commonwealth is paying in respect of similar land situated in another State.

I am therefore of opinion that there is no constitutional objection to paying different amounts of compensation in respect of wheat acquired in different parts of the Commonwealth, provided that in each case the acquisition is on just terms.

[Vol. 33, p. 75]