Re New South Wales Farmers' Association; Bryce Killen; Daryl Killen; Peter Taylor and Charles Armstrong v Minister of Primary Industries and Energy and Australian Wool Corporation [1990] FCA 189 (14 June 1990)

FEDERAL COURT OF AUSTRALIA

Re: NEW SOUTH WALES FARMERS' ASSOCIATION; BRYCE KILLEN; DARYL KILLEN; PETER
TAYLOR and CHARLES ARMSTRONG
And: MINISTER FOR PRIMARY INDUSTRIES AND ENERGY and AUSTRALIAN WOOL
CORPORATION
No. N G291 of 1990
FED No. 255
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Lockhart(1) and Von Doussa(1) JJ.

CATCHWORDS

Administrative Law - Administrative Decisions (Judicial Review) - Construction of ss. 66 and 120 of Wool Marketing Act 1987 Whether s. 120 empowers the Minister to direct the Corporation as to the prices to be determined pursuant to para 66(1)(a) and the price to be published by the Corporation pursuant to para 66(1)(b) - Whether the particular terms of s. 66 prevail over the general provision of s.120 - Whether sub-s. 66(4) is exhaustive of the Minister's powers to intervene in the processes to which s. 66 is directed.

Acts Interpretation Act 1901: sub-s. 33(3B)

Administrative Decisions (Judicial Review) Act 1977

Wool Industry Act 1972

Wool Marketing Act 1987: ss. 66,120

Wool Marketing (Amendment) Bill 1990

HEARING

SYDNEY
14:6:1990

Counsel for the applicants: Mr T. Simos QC, Mr J.L.B. Allsop

Solicitors for the applicants: Blake Dawson Waldron

Counsel for the first respondent: Sir Maurice Byers QC

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: Mr W.H. Nicholas QC Mr J. Marshall

Solicitors for the second respondent: Australian Government Solicitor

ORDER

Question 1
Upon the true construction of the Wool Marketing Act 1987 does s. 120 of the said Act empower the first respondent to give a direction to the second respondent:
(a) as to the prices to be determined by the second

respondent pursuant to para 66(1)(a);
(b) as to the price to be published by the second
respondent pursuant to para 66(1)(b) of the said Act.
Answer
(a) Yes
(b) Yes.

Question 2
Upon the true construction of the Wool Marketing Act 1987 does the said Act empower the first respondent to give a direction to the second respondent in terms of the direction purported to be given on 31 May 1990?

Answer
Yes.

Question 3

In the light of the answers to 1 and 2 above:
(a) What is the effect in law if any of the direction of
the first respondent to the second respondent of 31
May 1990?
(b) Should any and, if so, which, of the claims for relief
set out in paragraphs 1 - 8 of the Application be
granted by the Court?
Answer
It is unnecessary to answer this question in the light
of our answers to the preceding questions.

The Court orders that:
1. The matter be remitted to a single Judge of this Court for the further

hearing and determination of the remaining issues.

2. The applicants pay the costs of the respondents of the proceeding before the Full Court.

DECISION

This case raises questions of considerable public importance concerning the construction of the Wool Marketing Act 1987 ("the Act"). It comes to the Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 and s. 39B of the Judiciary Act 1903. The matter is within the original jurisdiction of the Court but was heard by this Full Court following a direction of the Chief Justice pursuant to sub-s. 20(1A) of the Federal Court of Australia Act 1976.

2. The case turns essentially on the construction of ss. 66 and 120 of the Act; but before turning to those sections and the statutory framework in which they operate a brief reference to the relevant facts is necessary.

3. On 25 May 1990 the Minister for Primary Industries and Energy, the Honourable John Charles Kerin MP ("the Minister"), wrote a letter to the Chairman of the Australian Wool Corporation ("the Corporation") stating that he thereby gave notice to the Corporation that he was considering giving a direction pursuant to the powers conferred on him by s. 120 of the Act concerning the performance of the Corporation's functions and the exercise of its powers under s. 66 of the Act.

4. On 31 May 1990 the Minister gave a direction in writing to the Corporation under sub-s. 120(1) of the Act in the following terms:

"COMMONWEALTH OF AUSTRALIA
WOOL MARKETING ACT 1987
DIRECTION UNDER SECTION 120

I, JOHN CHARLES KERIN, Minister for Primary Industries and Energy:

(a) having power under section 120 of the Wool
Marketing Act ('the Act'), subject to the
conditions set out in subsection (2) of
that section, to give directions to the
Australian Wool Corporation ('the
Corporation') concerning the performance
of its functions and the exercise of its
powers; and
(b) being satisfied that, because of the
existence of exceptional circumstances, it
is necessary to give the following
direction in order to ensure that the
exercise by the Corporation of its powers
under subsection 66(1) of the Act does not
conflict with major Government policies;
and
(c) having given the Corporation a written
notice stating that I was considering
giving the following direction, and
(d) having provided the Chairperson of the
Corporation an adequate opportunity to
discuss with me the need for the proposed
direction;

hereby direct the Corporation under section 120:

(e) subject to section 66, to determine (or
re-determine) under paragraph 66(1)(a) the
prices that ought to be the prices for
certain types of wool for the 1990-91 wool
selling year so that the weighted average
of those prices is no more than 700 cents
per kilogram clean; and
(f) subject to section 66, to publish under
paragraph 66(1)(b) as the minimum market
indicator reserve price for that year a
price no more than 700 cents per kilogram
clean.

JOHN CHARLES KERIN
Dated this Thirty-first day of May 1990"

5. After receiving the direction the Corporation determined that the minimum market indicator reserve price of wool for the year commencing 1 July 1990 will be 700 cents per kilogram clean. The Corporation has not yet published that price pursuant to para 66(1)(b) of the Act. Indeed, the Wool Council of Australia ("the Council") was informed, but disagreed, with that price; hence the Corporation is prohibited from publishing a price under para 66(1)(b) (see sub-s. 66(2)).

6. It appears that the next steps will be for the Corporation to inform the Minister of the disagreement (para 66(4)(a)) and the Minister shall then determine and publish the price that is to be the minimum market indicator reserve price for the year (para 66(4)(b).

7. This proceeding raises the question whether the Minister had power to give the direction to the Corporation on 31 May 1990 pursuant to s. 120.

8. The parties formulated the following questions for the decision of this Full Court:
Question 1

9. Upon the true construction of the Wool Marketing Act 1987 does s. 120 of the said Act empower the respondent to give a direction to the second respondent:

(a) as to the prices to be determined by the second
respondent pursuant to para 66(1)(a);
(b) as to the price to be published by the second
respondent pursuant to para 66(1)(b) of the said Act.

Question 2

10. Upon the true construction of the Wool Marketing Act 1987 does the said Act empower the first respondent to give a direction to the second respondent in terms of the direction purported to be given on 31 May 1990?
Question 3

11. In the light of the answers to 1 and 2 above:

(a) What is the effect in law if any of the direction of
the first respondent to the second respondent of 31
May 1990?
(b) Should any and, if so, which, of the claims for relief
set out in paragraphs 1 - 8 of the Application be
granted by the Court?

12. To understand the significance of the questions it is necessary to refer to the statutory framework in which ss. 66 and 120 of the Act operate.

13. The Act came into operation on 1 July 1987 and replaced the Wool Industry Act 1972. The Act governs the operation of the Corporation and a system for the sale of wool in Australia. The Act continued in existence the Corporation (s. 4). The object of the Corporation is to increase the commercial returns to Australian wool growers by facilitating wool marketing, wool use promotion, funding and administering wool research and development and owning and managing wool stores (s. 5).

14. Before the commencement of each financial year the Council determines the percentage of the sale value of shorn wool to be paid in that year into the Market fund (para 46(1)(a)). The "Market Fund" is what the Act defines as the market support fund continued in existence from the previous legislation under s. 48 of the Act. Where all the tax imposed on particular shorn wool by a Wool Tax Act is received by the Commonwealth, it pays to the Corporation an amount equal to the percentage of the sale value of that shorn wool determined by the Council under para. 46(1)(a) (para 47(1)(a)). That amount is then credited by the Corporation to the Market Fund (para 49(1)(a)). Money standing to the credit of the Market Fund may be used by the Corporation for the purchase of wool in the performance of its functions of operating the reserve price scheme under Part IV Division 2 of the Act (sub-para 49(2)(a)(i)). The Corporation is empowered to borrow money for the performance of its functions (s.53). The operation of the reserve price scheme can result in the Corporation borrowing very large sums of money in particular as the Corporation has a statutory duty to buy wool at auction or, where it is offered for sale by tender, where there is no bid or tender equal to or higher than the minimum reserve price for wool of a particular type (para 64(b) and s. 67). For the financial year commencing 1 July 1990 the evidence suggests that the amount of the borrowing could in total rise as high as $A4 billion.

15. Part IV of the Act entitled "Wool Marketing" is important for present purposes. The functions of the Corporation in relation to wool marketing are specified in s. 63 in fifteen paragraphs which include the operation of the reserve price scheme in respect of wool offered for sale at auction or by electronic means (para 63(1)(a)).

16. Division 2 of Part IV is entitled "Reserve Price Scheme" and it includes s. 66 which is in the following terms:

"66(1) Subject to subsection (2), before the
commencement of each financial year, the Corporation
shall:
(a) determine the prices that, having regard
to past wool prices and all other matters
that it considers relevant, ought to be
the prices for certain types of wool for
that year; and
(b) publish a price, to be known as the
minimum market indicator reserve price for
that year, that is the weighted average of
those prices.
(2) The Corporation shall not publish a price under
paragraph (1)(b) unless the Wool Council has agreed to
that price.
(3) If the Wool Council does not agree to a price
proposed to be published under paragraph (1)(b), the
Corporation may redetermine a price or prices under
paragraph (1)(a) in order to obtain a price which
could be published under paragraph (1)(b) with the
agreement of the Wool Council.
(4) If the Corporation and the Wool Council cannot
agree on a price to be published under paragraph
(1)(b) for a financial year:
(a) the Corporation shall inform the Minister
of the disagreement; and
(b) the Minister shall determine and publish
the price that is to be the minimum market
indicator reserve price for that year.
(5) As soon as practicable after the publication of
the minimum market indicator reserve price for a
financial year, the Corporation shall, having regard
to that price, determine the minimum reserve prices
for the various types of wool for that year.
(6) The Corporation may increase or decrease the
minimum reserve price for particular wool in order to
encourage innovations in the marketing of wool that it
considers advantageous for the wool industry or to
discourage innovations in such marketing that it
considers disadvantageous for that industry."

17. Section 66 thus operates this way. Before the commencement of each financial year (commencing July) the Corporation shall determine the prices that ought to be the prices for certain types of wool for the next financial year having regard to past wool prices and all other matters that the Corporation considers relevant (para 66(1)(a)). The Corporation is required by para 66(1)(b) to publish the price known as the minimum market indicator reserve price for that year, i.e. the weighted average of the prices for certain types of wool for that year; but it is prohibited from publishing that price unless the Council has agreed to it (sub-s. 66(2)). The price that the Corporation is required to publish, but only with the agreement of the Council and calculated, after the weighting of figures by the Corporation, is the mathematical result of the prices which the Corporation decided under para 66(1)(a) as being those which ought to be the prices for certain types of wool for the relevant year. The Corporation is empowered to redetermine the prices which ought to be the prices for certain types of wool for the relevant year under para 66(1)(a) in the event that the Council disagrees with the prices which the Corporation proposed be published under para 66(1)(b). If the Corporation and the Council agree on the relevant reserve or floor price for the year and the Corporation then publishes that price for that year, the Corporation is required to determine the minimum reserve prices for the various types of wool for that year having regard to the notional price so fixed (sub-s. 66(5)). A price fixed pursuant to sub-s. 66(5) is not a notional price, but the actual minimum reserve price for the various types of wool.

18. Sub-section 66(4) provides machinery for resolving disagreement between the Corporation and the Council with respect to the price to be published under para 66(1)(b) and requires to the Minister to determine and publish the price that is to be the minimum market indicator reserve price in the event of disagreement between the two bodies and following the Corporation having informed the Minister of the disagreement.

19. Once the minimum reserve prices for the various types of wool have been fixed pursuant to sub-ss. 66(5) the Corporation is required to be prepared to buy wool which is offered for sale under controlled arrangements and which does not reach its minimum reserve price (s. 67).

20. Section 73 empowers the Minister to set guidelines for the purpose of the exercise by the Corporation of its powers under Division 2.

21. The other provision of the Act which is central to this case is s. 120 which is included in Part VIII of the Act entitled "Miscellaneous" and it provides as follows:

"120(1) Subject to subsection (2), the Minister may
give directions in writing to the Corporation
concerning the performance of its functions and the
exercise of its powers, and the Corporation shall
comply with those directions.
(2) The Minister shall not give a direction to
the Corporation unless:
(a) the Minister is satisfied that, because of
the existence of exceptional circumstances,
it is necessary to give the direction to the
Corporation in order to ensure that the
performance of the functions, or the
exercise of the powers, of the Corporation
does not conflict with major government
policies;
(b) the Minister has given to the Corporation a
written notice stating that the Minister is
considering giving the direction; and
(c) the Minister has given to the Corporation
Chairperson an adequate opportunity to
discuss with the Minister the need for the
proposed direction.
(3) Subject to subsection (4), where the
Minister gives a direction to the Corporation:
(a) the Minister shall:
(i) cause a written notice setting
out particulars of the direction
to be published in the Gazette as
soon as practicable after giving
the direction; and
(ii) cause a copy of that notice to be
laid before each House of the
Parliament within 15 sitting days
of that House after the
publication of the notice in the
Gazette; and
(b) the annual report for the year in which
the direction was given shall include:
(i) particulars of the direction; and
(ii) particulars of the impact of that
direction on the operations of
the Corporation.
(4) Subsection (3) does not apply in relation to
a particular direction if:
(a) the Minister, on the recommendation of the
Corporation, determines, in writing, that
compliance with the subsection would, or
would be likely to, prejudice the
commercial activities of the Corporation;
or
(b) the Minister determines, in writing, that
compliance with the subsection is
undesirable because compliance would, or
would be likely to, be prejudicial to the
national interest of Australia."

22. Section 120 thus empowers the Minister to give directions in writing to the Corporation requiring it to perform any of its functions and to exercise any of its powers and the Corporation is required to comply with those directions. It is plain from sub-s. 120(2) that the power arises only in "exceptional circumstances" and where the direction is necessary to ensure that the Corporation's performance of its functions or the exercise of its powers does not conflict with "major government policies" (para 120(2)(a)).

23. The Act is plainly designed to enable decisions in the ordinary course to be determined by the Corporation; but s.120 is a reserve power vested in the Minister to be invoked where matters of importance to the national interest are involved. The fixing of minimum reserve prices under s. 66 is obviously of national significance to a nation heavily dependent upon its exports of primary products including wool which is one of its principal exports and as the borrowings of the Corporation under the Act to enable it to fulfil its statutory duties may be in huge sums and could reach a total of $A4 billion during the forthcoming financial year. The interests of the wool industry alone may not always coincide with the national interests of Australia as a whole.

24. By the Wool Marketing (Amendment) Bill 1990 passed by both Houses of the Parliament the Federal Government is to guarantee the borrowings of the Corporation for the next two years.

25. Division 2 of Part IV establishes the basis of a legislative regime for the operation of the reserve price scheme in which the Minister plays a specific role under sub-s. 66(4) to determine and publish the price that is to be the minimum market indicator reserve price for the relevant forthcoming year in the absence of agreement between the Corporation and the Council on that price. That role is one exercisable in the interests of the Australian woolgrowers to ensure that in the ordinary operation of the reserve price scheme a trading year does not commence with no reserve price in place. Section 66 is therefore part of the legislative machinery that would in the ordinary course from year to year establish the minimum reserve prices for wool and otherwise result in the operation of the reserve price scheme under the control of the Corporation.

26. Section 120 is a reserve power vested in the Minister to intervene in the national interest, by the giving of directions in writing to the Corporation concerning the performance of its functions and the exercise of its powers.

27. It was argued by counsel for the applicants that s. 120 was a general provision of the Act and s. 66 a provision dealing with a particular subject matter, that there was a repugnancy between the two, with the result that the latter must prevail and the general provision (s. 120) is inapplicable to the subject matter of the special provision (s. 66). Reliance was placed upon the judgment of Deane J. in Refrigerated Express Lines (Australasia) Pty Limited v Australian Meat and Livestock Corporation (1980) 29 ALR 333 at 347 and Amalgamated Television Services Pty Limited v Australian Broadcasting Tribunal (1989) 91 ALR 363 at 375. The principle involved in those cases applies where as a matter of construction it appears that the special provision was intended exhaustively to govern the particular subject matter and where the application of the general provision would constitute a departure from that intention by encroaching on that subject matter. We discern no such intention of the Legislature in the present case with respect to ss. 66 and 120.

28. In our opinion the language of s. 120 is apt to encompass the giving by the Minister of the direction of the kind given in this case. Sub-section 120(1) provides in clear terms that the Minister's power to give directions in writing to the Corporation is "concerning the performance of its functions and the exercise of its powers". Section 120 appears in Part VIII entitled "Miscellaneous" and the section makes clear, as mentioned earlier, that it is only where the Minister is satisfied that because of "exceptional circumstances" and to ensure that the performance of the Corporation's functions or the exercise of its powers does not conflict with "major government policies" that the power can be invoked. These are high thresholds for the Minister to cross before he may exercise the power under s. 120, but the power is engrafted upon the preceding specific provisions of the Act, of which there is a number of particular instances, which concern the performance by the Corporation of its functions and the exercise of its powers.

29. It is difficult to envisage powers vested in the Corporation of more importance to the national interest than its powers with respect to the reserve price scheme conferred by s. 66. It is to be expected that, in legislation relating to the export marketing of wool, powers as significant as those vested in the Corporation by s. 66 should be subject to an overriding power of the Federal Government, through the responsible Minister, to ensure that those powers are exercised in conformity with the national interest. But the legislature has circumscribed the exercise of this reserve power by requiring the existence before its exercise of the conditions precedent, namely, the existence of "exceptional circumstances" and the avoidance of conflict between the exercise of the Corporation's powers and "major government policies". The language of sub-s. 120(1) is therefore apposite to encompass the giving by the Minister of a direction of the kind given in this case.

30. In our opinion there is a plain legislative intent that, although in the ordinary run of cases the Corporation would not be subject to intervention by the Minister under s. 120 when exercising its powers under s. 66, the Minister has been given the reserve powers under s. 120 when the exceptional circumstances to which that section refers occur.

31. We should mention at this stage that it is agreed between the parties that the conditions precedent to the exercise by the Minister of his powers under s. 120 are assumed for present purposes to have existed when the Minister gave the relevant direction to the Corporation. This means in particular that the Court shall proceed on the assumption that the Minister was satisfied that because of the existence of "exceptional circumstances" it was necessary to give the direction to the Corporation in order to ensure that the performance of its functions or the exercise of its powers did not conflict with "major government policies" (para 120(2)(a)). The proceeding is thus akin to a demurrer of former times.

32. It was also argued by counsel for the applicants that what the Minister sought to do in the present case was in effect to indirectly and unlawfully himself determine and publish the price that is to be the minimum market indicator reserve price for the ensuing year when these powers are vested in the Corporation. Reliance was placed upon sub-s. 66(4) as supporting the proposition that this subsection is a specific provision in the section entitling the Minister to intervene but only in the circumstances there contemplated, namely, disagreement between the Corporation and the Council with respect to the minimum market indicator reserve price. Sub-section (4) was said to be an indication of legislative intent that it was exhaustive of the Minister's powers to intervene in the processes to which s. 66 is directed. It was, however, conceded that there is some scope for s. 120 to impinge upon s. 66 by, for example, the Minister giving a direction as to the time when the Corporation should exercise its powers under para 66(1)(a).

33. Our earlier observations are sufficient to cause this argument to be rejected. We would add only that sub-s. (4) is a power vested in the Minister which arises other than in the exceptional circumstances to which s. 120 is directed. Section 120 does not empower the Minister himself to perform the Corporation's function for which s. 66 makes provision. The Corporation must itself determine the prices that ought to be the prices for certain types of wool for the ensuing year under para 66(1)(a) and is prohibited from publishing the minimum market indicator reserve price for the year without the prior agreement to the price of the Council under para 66(1)(b) (sub-s.66(2)). The effect of the intervention of the Minister pursuant to his powers conferred by s. 120 is that the Corporation is still required to perform its duties under s. 66 of determining the prices that ought to be the prices for certain types of wool for the relevant year having regard to the matters to which para 66(1)(a) is directed and to publish the price being the minimum market indicator reserve price for the year provided the Council has agreed to that price, but the price determined by the Corporation cannot exceed 700 cents per kilogram clean. The Minister is empowered by s. 120 in the circumstances there stipulated to give a direction to the Corporation "concerning the performance of its functions and the exercise of its powers". This he has done by directing the Corporation, when exercising its powers under s. 66, to determine the prices under para 66(1)(a) so that the weighted average of those prices is not more than 700c per kilogram clean and not to publish a minimum market indicator reserve price pursuant to para 66(1)(b) that is more than 700c per kilogram clean.

34. The Corporation is therefore free to determine the prices that ought to be the prices for certain types of wool for the ensuing financial year having regard to past wool prices and all other matters that it considers relevant and to publish the minimum market indicator reserve price provided that the minimum market indicator reserve price does not exceed 700c per kilogram clean. The only impingement upon the free exercise by the Corporation of the powers conferred upon it by s. 66 is as to the minimum market indicator reserve price that must result from the exercise of its powers.

35. The form of the Ministerial directive does not suggest that the Minister is seeking to usurp the Corporation's powers. It follows from the terms of paragraphs (e) and (f) of the direction of 31 May 1990 that the Minister recognises that the Corporation must itself determine the relevant prices under para 66(1)(a) having regard to the matters specified in that paragraph; and that it cannot publish a minimum reserve price under para 66(1)(b) without the agreement of the Council to that price - hence the reference in para (e) of the Minister's direction directing the Corporation "to determine (or redetermine)" under para 66(1)(a). The reference in both paras (e) and (f) of the direction "subject to s. 66" confirms that the Minister recognised the necessity for the Corporation and the Council to agree to the minimum market indicator reserve price before the Corporation could publish the price pursuant to para 66(1)(b) which in turn would involve the Corporation in redetermining the price under para 66(1)(a).

36. The form of the direction given by the Minister to the Corporation in this case pursuant to s. 120 recognises implicitly that, if the Corporation and the Council cannot agree on the relevant price to be published under para 66(1)(b), then, upon the Corporation informing the Minister of that disagreement, it will fall to the Minister to determine and publish the requisite price that is to be the minimum market indicator reserve price for the year pursuant to sub-s. 66(4).

37. Reliance was placed by counsel for the applicants upon the decision of Hope J. in the Supreme Court of New South Wales in Bosnjak's Bus Service Pty Limited v Commissioner For Motor Transport (1970) 92 WN NSW 1003 especially at 1014-1015. We see no useful purpose in discussing this decision in detail because it is plain that it was concerned with a statute containing quite different provisions and subject matter to those contained in the Act.

38. Counsel for the applicants argued that the performance by the Corporation of its functions in relation to the determination of the minimum market indicator reserve price is by the terms of para 66(1)(a) conditioned upon the Corporation first determining the prices that ought to be the prices for certain types of wool for the forthcoming year. Then from those indicative prices the minimum market indicator reserve price is derived. It is contended that it is inconsistent with the terms of para 66(1)(a) for the Corporation to be required by a direction from the Minister to work backwards from a minimum market indicator reserve price to arrive at the indicative prices which the Corporation is required to determine. This submission recognises that the Minister may exercise power under s. 120 in relation to some aspects of the function of the Corporation under s. 66, but challenges the validity of the particular exercise made by the Minister in giving the direction of 31 May 1990.

39. Crucial to this contention is the proposition that it is inconsistent with the procedure laid down in para 66(1)(a) to work from a minimum market indicator reserve price to determine the prices that ought to be the prices for certain types of wool. We are unable to accept this step in the argument. That it is possible to proceed from a minimum market indicator reserve price to particular prices for various types of wool is recognised in sub-ss. 66(4) and (5). In the event that in the ordinary process of reserve price determination under s. 66 the Corporation and the Council cannot agree on a price to be published under para 66(1)(b) for a financial year, the Minister is required to determine and publish the price under para 66(4)(b). The Minister may determine a price other than the weighted average of indicative prices earlier determined by the Corporation under para 66(1)(a). If this happens, sub-s. 66(5) recognises that the Corporation will then proceed from the minimum market indicator reserve price so determined to arrive at minimum reserve prices for various types of wool for that year. Sub-section 66(3) also recognises that it is possible to work from a minimum market indicator reserve price which could be published under para 66(1)(b) to particular prices for certain types of wool.

40. Further, in the ordinary course of its deliberations, it would clearly be within the power of the Corporation under para 66(1) (a) to have regard to, as a relevant matter, market and industry acceptance of a particular minimum market indicator reserve price which had applied in earlier years, and to use that as a yardstick from which to determine indicative prices for the forthcoming year.

41. In our opinion there is no repugnancy between the provisions of para 66(1)(a) and the Minister's direction dated 31 May 1990. We have already indicated that we consider s. 120 should be construed as an overriding power exercisable by the Minister in the national interest in the circumstances envisaged by sub-s. 120(2). Where the power is exercised by the Minister in relation to the performance of the functions of the Corporation under s. 66(1), the role of the Corporation remains an important one. It is still necessary for the Corporation to determine, within the bounds of the Minister's direction, the prices that ought to be the prices for certain types of wool in that year. Past wool prices, and other factors peculiar to the wool industry which are within the expertise of the members of the Corporation will be relevant in determining the indicative prices of various types of wool for submission to and consideration by the Council. As we have already noted, the Minister's direction does not seek to bypass or override these important requirements of sub-s. 66(1).

42. It was argued by counsel for the first respondent that sub-s. 33(3B) of the Acts Interpretation Act 1901, operated to negate the argument of counsel for the applicants that s. 66 was a particular statutory provision which ousted the application of s. 120 as a general provision. In view of our earlier rejection of this argument of the applicants for other reasons we need not consider the possible application of sub-s. 33(3B)

43. Reliance was placed by counsel for the applicants upon the Second Reading Speech of the responsible Minister for the introduction to the House of Representatives of the Bill which became the Act. We need not refer to that speech because, when read as a whole, it contains no support for the arguments for which the applicants contend. Indeed, to the extent that they assist the Court at all they support the argument of the Minister by reference to his reserve power under s. 120.

44. When the Chief Justice gave his direction pursuant to sub-s. 20(1A) of the Federal Court of Australia Act 1976 it was on the basis, accepted by all parties, that the Full Court would deal solely with questions of law that arise in the proceeding, being those stated in the agreed questions of law earlier mentioned, and that if the answer to those questions left any remaining issues to be determined they would be referred back to a single Judge of the Court to further exercise the original jurisdiction of the Court. Before answering the questions we must say that we cannot yield to the invitation of counsel for the applicants that the Court should express in the form of declarations its answers to those questions. Counsel for the applicants suggested that, if the Court's answers to the questions are in favour of the applicants, the declarations should be unconditional; but if they are against the applicants the declarations should be subject to a proviso that

"the conditions precedent set out in sub-s. 120 (2) to
the exercise of the power in sub-s. 120 (1) by the
first respondent were in existence and have been
complied with and provided further that the exercise
of the power by the first respondent was not vitiated
by any of the other matters raised in Application
dated 4 June, 1990."

45. The applicants therefore wish to preserve their right to attack the factual foundation on which the Minister relied when giving the direction under s. 120 (i.e. the existence of "exceptional circumstances" and the necessity to give the direction in order to ensure that the exercise by the Corporation of its powers under sub-s. 66 (1) did not conflict with "major government policies"), yet they wish to concede those facts for the purpose of the present hearing. In our opinion it is undesirable, if not impermissible, to grant declaratory relief in the conditional form suggested by the applicants.

46. In conclusion we wish to make it clear that the Court is presently considering questions of law only and does not have before it any question concerning the merits of the decision of the Minister relating to the lowering of the reserve price from 870 to 700 cents per kilogram clean.

47. The Court answers the questions as follows:
Question 1

48. Upon the true construction of the Wool Marketing Act 1987 does s. 120 of the said Act empower the respondent to give a direction to the second respondent:

(a) as to the prices to be determined by the second
respondent pursuant to para 66 (1) (a);
(b) as to the price to be published by the second
respondent pursuant to para 66 (1) (b) of the said
Act.
Answer
(a) Yes
(b) Yes

Question 2

49. Upon the true construction of the Wool Marketing Act 1987 does the said Act empower the first respondent to give a direction to the second respondent in terms of the direction purported to be given on 31 May 1990?

Answer
Yes.

Question 3

50. In the light of the answers to 1 and 2 above:

(a) What is the effect in law if any of the direction of
the first respondent to the second respondent of 31
May 1990?
(b) Should any and, if so, which, of the claims for
relief set out in paragraphs 1 - 8 of the
Application be granted by the Court?
Answer
It is unnecessary to answer this question in the
light of our answers to the preceding questions.
The applicants shall pay the costs of the respondents
of the proceeding before the Full Court of this Court.
The matter is remitted to a single Judge of this
Court for the further hearing and determination of the remaining
issues.