H. H. Warner & Co. Ltd have written to the Prime Minister calling his attention to certain provisions of the N.S.W. Pure Food Act 1908, which they contend violate sec-tions 92 and 117 of the Constitution.

The Prime Minister asks to be advised on the questions raised.

The State Act mentioned forbids the sale of any food or drug which is adulterated or falsely described, etc.

Section 47 provides that any person prosecuted for such sale shall be entitled to be discharged on proving-

1. that he has received, from the person from whom he purchased the article, or his agent, a guarantee in writing that it is not adulterated or falsely described, etc.; and
2. that he had no reason to believe that it was adulterated or falsely described; and
3. that he sold it in the same state as when he purchased it.

Then follows the provision to which objection is taken, namely the condition that-

The person giving the guarantee must be resident in New South Wales, or, if a company, must have a registered office in New South Wales.

It is contended that this provision is a breach of interstate trade; and that it is also a disability or discrimination, imposed upon British subjects in other States, which would not be equally applicable to them if they were resident in New South Wales.

The giving of a false guarantee is an offence under the Act.

1. As to freedom of interstate trade, I think it cannot be doubted that the provision has a tendency to give an advantage to articles produced in New South Wales as against articles produced in other States. Other things being equal, guaranteed goods will be preferred, by traders, to unguaranteed goods; and in order to get this preference, vendors from other States must have an authorized agent resident in New South Wales.

But if the real subject-matter of the Act is within the scope of the police powers of the States, and it has not for an object the burdening of interstate trade, it will not be unconstitutional merely because it incidentally and indirectly does affect interstate trade.

The purpose of this Act is to prevent the sale, in the State, of impure or adulterated food and drugs. It places on the vendor the responsibility for the purity of the articles sold by him; and punishes him, if they are impure, whether he was aware of the im-purity or not. But this principle-however desirable in the interests of the public-is hard on the retail trader who sells articles for whose composition he is not responsible; and to mitigate this hardship, the law allows him to purchase the goods with a guaran-tee from their vendor, which shifts the responsibility back to the guarantor. A false guarantor is made criminally punishable; and to ensure that the guarantor shall be amenable to the criminal law of the State, it is provided that only a resident of the State can be a guarantor.

The English Sale of Food and Drugs Act 1899 contains a somewhat similar pro-vision, though with a qualification. It provides (section 20) that a warranty given by a person resident outside the United Kingdom shall not be available as a defence to a proceeding under the Act 'unless the defendant proves that he had taken reasonable steps to ascertain and did in fact believe in the accuracy of the statement contained in the warranty'.

Similar Acts are in force in some of the Australian States. The Victorian Pure Food Act 1905, (No. 2010), section 33, is in this respect identical with the English Act. The South Australian Food and Drugs Act 1908, section 58, provides, without qualification, that 'A warranty given by a person resident outside South Australia shall not be available as a defence to any proceeding under this Act'-and is thus in effect similar to the New South Wales Act.

There is no indication that any of these Acts has any other object than its osten-sible one-to secure the purity of food and drugs sold in the State; or that they affect interstate trade to a substantial extent, or more than is necessary to the effectiveness of the policy of the Act. Under the New South Wales Act, a vendor from another State can, by appointing an agent in New South Wales duly authorized to be a guarantor, place his goods on an equal footing with those of vendors in New South Wales.

I am therefore of opinion that the legislation in question is not a breach of section 92 of the Constitution.


2. Nor do I think that the New South Wales Act infringes section 117 of the Con-stitution. It does not subject residents outside the State to a disability or discrimination within the meaning of that section. The nature of the law is such that it cannot be enforced against residents outside the State. Even assuming that the right to give a guarantee may be regarded as a privilege of the guarantor, it is a privilege coupled with an obligation; and there is nothing unconstitutional in its limitation to persons against whom the obligation can be enforced.

[Vol. 7, p. 245]