PRICE FIXING: INCONSISTENCY POWER OF COMMONWEALTH TO FIX PRICES INCONSISTENT WITH PRICES FIXED UNDER STATE LEGISLATION: EXTENT OF COMMONWEALTH POWER TO REPEAL PRICE-FIXING ORDERS MADE BY STATES
CONSTITUTION, s. 109: NECESSARY COMMODITIES CONTROL ACT 1914 (N.S.W.), s. 8: WAR PRECAUTIONS (PRICES) REGULATIONS 1916, regs 13,17
The Chief Prices Commissioner forwards the following case for advice :
Under section 8 of the Necessary Commodities Control Act 1914 (N.S.W.) published in New South Wales Gazette No. 127 of 17 July 1916, certain prices were fixed for Kerosene, Benzine, Heavy Benzine, Motor Spirit and Benzoline. Commonwealth Order No. 140, Gazette No. 74 of 1917, fixed the price of Kerosene and Benzine, and repealed the order under the Necessary Commodities Control Act (N.S.W.) already referred to.
No prices have been fixed under a Commonwealth order for Heavy Benzine, Motor Spirit and Benzoline. Regulation 17 of War Precautions (Prices) Regulations Statutory Rules 1916 No. 155 says inter alia: 'All orders . . . shall, so far as they are not inconsistent with any prices fixed by or under these Regulations . . . continue in force ... as if they were orders made under these Regulations'.
Advice is sought on the following point: Has the Commonwealth the power to repeal a State order, or any portion thereof, without fixing a price for the commodities so repealed?
In other words do the prices fixed under the State Act, in the case cited above, still stand or are they null and void? Regulation 17 of the War Precautions (Prices) Regulations reads as follows:
All orders, awards, determinations and notifications made under any State Act which have the effect of fixing the maximum prices which may be charged for any goods, and which are in force at the date of the making of these Regulations, shall, so far as they are not inconsistent with any prices fixed by or under these Regulations, or by or under any Regulations repealed by these Regulations, continue in force, in the areas to which they respectively apply, as if they were orders made under these Regulations.
Commonwealth Order No. 140, which repeals the New South Wales order, was made by the Minister, acting, presumably, under War Precautions (Prices) Regulation
13, which reads as follows:
13 (1) The Minister may from time to time, on the recommendation of the Board or a Commissioner-
- determine the maximum prices which may be charged for foodstuffs and necessary commodities sold, and the maximum rates which may be charged for services the performance of which is commenced, in any proclaimed area;
- determine the conditions of the sale of foodstuffs and necessary commodities sold therein, and of the performance of services the performance of which is commenced therein.
(2) Any such determination shall be published in the Gazette, and shall from the date specified in the Gazette have the force of law.
In my opinion the Minister has power to make an order fixing prices, and thereupon, in pursuance of section 109 of the Constitution, any State order which is inconsistent with the order becomes invalid to the extent of the inconsistency, but I do not think the Minister has power to repeal a State order without fixing prices for the commodities covered by that order, and therefore the prices fixed under the State order for Heavy Benzine, Motor Spirit and Benzoline are, from a strictly legal point of view, still in force.
[Vol. 16, p. 18A]