Opinion Number. 708

Subject

FREEDOM OF INTERSTATE TRADE STATE LEGISLATION PROHIBITING EXPORT OF MEAT: REQUEST BY STATE TO IMPERIAL PARLIAMENT TO VALIDATE SUCH LEGISLATION AGAINST POSSIBLE INFRINGEMENT OF FREEDOM OF INTERSTATE TRADE: POWER OF COMMONWEALTH TO LEGISLATE WITH RESPECT TO EXPORT OF MEAT: CHANNEL OF COMMUNICATION BETWEEN STATES AND IMPERIAL GOVERNMENT

Author
Key Legislation

CONSTITUTION, ss. SI (vi), 92: MEAT SUPPLY FOR IMPERIAL USES ACT 1915 (N.S.W.): MEAT SUPPLY FOR IMPERIAL USES ACT 1914 (QLD): SUGAR ACQUISITION ACT 1915 (QLD)

Date
Client
The Prime Minister

The Prime Minister asks for advice in regard to the following cablegram from the Secretary of State for the Colonies to the Governor-General:

You will observe from my dispatch February 10th confidential to Governor of Queensland which please communicate to your Ministers that question arises as to validity Queensland Act two 1914 after discussion between Premier Queensland and Law Officers view now taken that it would be desirable that validating measure should be passed by Imperial Parliament. Would be glad to learn as early as possible whether your Government agrees to this and if so whether it will concur in validation at the same time of similar New South Wales Act six 1915 assuming this desired by Government of New South Wales which is being consulted. Hughes concurs.

The suggestion appears to be that the Imperial Parliament should declare the State Act and anything done thereunder to be valid, notwithstanding anything in section 92 of the Constitution.

In my opinion such a step would not only be a constitutional precedent of a most dangerous kind, but would in its immediate results be utterly subversive of the Constitution. It would elevate the State Act above the Constitution, so that in the event of a conflict between them the Constitution must yield and the State Act prevail. The protection of section 92 of the Constitution would be withdrawn from the people of the Commonwealth as regards anything done by the State Government which could be brought within the wide scope of the Act-no matter how destructive it might be of interstate trade.

And in this connection it is well to point out that though the title of the Act relates only to meat, the Act not only covers livestock, but may be extended by proclamation to all 'food stuffs, commodities, goods, chattels, live stock, or things whatsoever'. That this is not an empty form is illustrated by the fact that under the Queensland Sugar Acquisition Act 1915, which contains a similar extension clause, the Queensland Government has already placed an embargo on the transfer of livestock to other States.

The Queensland Government supports its request on the ground of Imperial purposes. I do not question the good faith of this argument, but it is quite fallacious. The movement of stock from one State to another does not diminish the supply available for Imperial purposes. Indeed, it is the restriction on such movement which diminishes the supply. Pastoralists move stock from one State to another for fattening purposes, for breeding purposes, and even to prevent their dying of starvation where the stock is on one side of the border and the grass on the other. Instances have been brought under my notice where the action of the Queensland Government has distinctly tended to diminish the available meat supply.

Whatever the purpose of the Queensland embargo may be, its operation is that the question, how much meat is available for export to England, is wrested from the Government of the Commonwealth and left with the Government of a State.

The Commonwealth, under its war legislation, has full power to deal with this matter, and can deal with it having regard to the necessities of Australia as a whole. The State Government has no responsibility to Australia as a whole. It is no service to the Empire to create a meat famine in five States in order to send meat to England-nor to have cheap meat in Queensland and dear meat in the rest of Australia. Yet the Queensland Government, in effect, is asking the Imperial Government to abrogate the Commonwealth Constitution in order to allow this to be done.

It must not be overlooked that the telegram of the Secretary of State refers to similar action with regard to the New South Wales legislation. It would be impossible to reject similar demands which might follow from all the other States; and the result would be that-in the name of Imperial organisation-the union of Australia as regards interstate trade and intercommunication would be absolutely undone, and the several States be encouraged to embark on a career of erecting interstate barriers, based on local self-interest, and to engage again in the old provincial system of commercial civil war.

I may add that I am unable to agree with the opinion of the Imperial Crown Law Officers that the Queensland Act is intra vires, and that section 92 of the Constitution only refers to fiscal restrictions. That opinion is in direct conflict with the unanimous decision of the High Court in the recent case of Foggitt, Jones & Co.Ltd v. State of New South Wales(1), decided on the 5th of this month (holding the corresponding New South Wales Act to be ultra vires), as well as with the dicta of all the Justices in previous cases, such as the Wheat Acquisition Case 20 C.L.R. 54, and R. v. Smithers; Ex parte Benson 16 C.L.R. 99.

Lastly, I must call attention to the irregular way in which the request of the Queensland Government has been brought before the Secretary of State. If ever there was a matter of federal concern, for which the channel of communication between the State Governments and the Imperial Government is through the Governor-General, it is this, which involves such a tremendous constitutional innovation as the abrogation, by the Imperial Parliament, of one of the fundamental principles of the Commonwealth Constitution. Yet this proposition is made by the Chief Secretary of Queensland, through the State Agent-General, to the Secretary of State, and is submitted for the advice of the Imperial Crown Law Officers before it has been heard of by the Commonwealth Government. It is true that the Secretary of State then declined to take action except at the request of the Commonwealth Government, but it is submitted that constitutional principles required that no official cognisance should be taken of such a request unless made through the proper channel.

[Vol. 14, p. 331]

(1)21 C.L.R. 357.