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High Court of Australia |
CARTER v. THE POTATO MARKETING BOARD [1951] HCA 60; (1951) 84 CLR 460
Constitutional Law (Cth.)
High Court of Australia
Dixon(1), McTiernan(1), Williams(1), Webb(1), Fullagar(1) and Kitto(1) JJ.
CATCHWORDS
Constitutional Law (Cth.) - Freedom of inter-State trade, commerce and intercourse - State marketing legislation - Marketing Board - Compulsory delivery of declared commodity to board - Prohibition on selling or delivery to, or buying or receiving declared commodity from person other than board - Severability - Operation of legislation subject to Commonwealth Constitution - Purchase by resident of New South Wales from Queensland producer - Commodity consigned in name of purchaser to and received by person in Queensland - Re-sale in Queensland - The Constitution (63 & 64 Vict. c. 12), s. 92 - The Primary Producers' Organisation and Marketing Acts, 1926 to 1946 (Q.) (17 Geo. V. No. 20 - 11 Geo. VI. No. 13), ss. 1A, 15 (1), (3).
HEARING
Brisbane, 1951, June 19, 20, 21.DECISION
October 17.2. The answer made to the charge on behalf of the appellants depends upon s. 92 of the Constitution. The validity of sub-s. (3) is attacked as an attempted impairment of the freedom of trade commerce and intercourse among the States of a kind incapable of any severable or distributable operation which would support the charge. The validity of the sub-section was attacked also as inseverably connected with sub-s. (1). The text of sub-s. (1) of s. 15 will be set out later. All that now need be said is that according to the appellants' claim sub-s. (1) is inconsistent with the freedom of inter-State trade and incapable of a severable or distributable application to or operation upon the domestic trade of the State of Queensland. (at p477)
3. The legislation contains a severability clause, and, unless the transaction to which the charge relates is itself one of inter-State commerce falling within the protection of s. 92, the questions raised by the contentions for the appellants will depend upon the application of that clause with respect to sub-s. (3). That is to say, it will depend upon the extent to which, having regard to the scope of the protection afforded by s. 92, the severability clause validly may give an operation to the material part of sub-s. (3) and upon the extent to which, as a matter of interpretation, it does so. This will be true also of sub-s. (1), if the partial validity of that sub-section becomes important, as it would if it were found that sub-s. (3) is inseparable from sub-s. (1) so that it must fall unless sub-s. (3) possesses some operation. (at p477)
4. That the appeal must depend upon the possibility of giving the provisions a severable or distributive application is apparent almost from a bare perusal of the provisions in question. For, consistently with the decided cases, it would not be easy to deny that if the general language of sub-s. (3) were given a literal application it would include transactions of inter-State commerce and interfere with the freedom of trade commerce and intercourse among the States. On the other hand it is just as difficult to deny that if by appropriate words of restriction or exception or by a corresponding implication, the operation of sub-s. (3) was confined to the domestic trade of the State and the possibility of interference with the freedom of inter-State commerce was excluded, it would be competent to the State to enact such a law. The same thing will be found to be true of sub-s. (1), notwithstanding a somewhat greater difficulty perhaps in framing the restriction or exception. (at p477)
5. But a further contention was advanced which depends in some degree upon the facts of the case. It was that if it were found possible to give to sub-s. (3) of s. 15 a partial operation that was valid, it could only be by excluding whatever of the commodity was subject to, needed for the purpose of, or intended to be used for inter-State commerce (as exemplified by Matthews v. Chicory Marketing Board (Vict). [1938] HCA 38; (1938) 60 CLR 263, at pp 273, 274 and 283 ), and that upon the facts a sufficient inter-State element existed to place the case outside the residual operation so conceded to sub-s. (3). It is seldom, if ever, desirable to decide any question of constitutional validity in abstracto and independently of the facts but this contention makes necessary a consideration of the precise circumstances. (at p478)
6. The appellants are a firm carrying on business at Roma Street, Brisbane, as wholesale fruit and produce merchants. On the New South Wales and Queensland border at the town called Wallangarra on the Queensland side and Jennings on the New South Wales side, a firm named J.E. Long & Co. carry on business as wholesale fruit, vegetable and produce merchants. The place of business of the firm is in Jennings on the New South Wales side of the border and so is the place of residence of the partner concerned in this transaction, H.G. Butt. The post office, however, is on the Queensland side and the firm's letters are delivered there in a post office box. The border is marked by a fence open at the railway station. The firm had an agent named Profke, who bought produce for them in Queensland. In a telephone conversation, apparently conducted from Jennings in New South Wales to Lowood in Queensland, Butt instructed Profke to buy potatoes for the firm from local growers. Profke accordingly bought seven bags of potatoes from a grower named Heise and fifty-four bags from a grower named Sippel. They were paid for by J.E. Long & Co.'s cheque. Under the terms of purchase the potatoes were to be delivered at the Lowood railway station, whence Profke consigned them in the name of J.E. Long & Co. to Roma Street railway station, Brisbane, naming J.E. Long & Co. as consignees. Lowood lies east of Brisbane and is connected with Brisbane by rail through Ipswich. The potatoes reached Roma Street on 17th May 1950. On that day Butt telephoned to the appellants' firm at Roma Street, Brisbane, and informed them that potatoes were coming from Lowood consigned to J.E. Long & Co., Roma Street, and instructed them to take delivery of the consignment and to sell the potatoes on commission. The firm accordingly took delivery of the sixty-one bags of potatoes at the Roma Street railway sheds and obtained an advice note showing the number of bags, the place of consignment, the freight and the consignor and consignee. They took the potatoes to their stand in the market. There they sold them. On 16th May 1950 J.E. Long & Co. had instructed the Roma Street station master to deliver the potatoes to the appellants' firm and on 19th May Butt wrote to the firm that he trusted they had received from Lowood the sixty-one bags of potatoes which he had asked them to dispose of on account of J.E. Long & Co., and that he looked forward to the account sales in due course. The appellants' firm sent J.E. Long & Co. the account sales accompanied by a cheque for the proceeds of the potatoes less freight cartage and commission. (at p479)
7. It will be seen that there is no inter-State element in the whole transaction except that Butt's instructions to Profke and to the appellants' firm appear to have been communicated or transmitted from Jennings. Possibly the cheque paid to the growers for the potatoes also came from Jennings. The account sales and the cheque for the proceeds were doubtless delivered to the box in the post office at Wallangarra and, if taken across the border, were so taken by J.E. Long & Co. themselves. (at p479)
8. The receiving of the potatoes, which is made the basis of the charge against the appellants under s. 15(3) is the receiving of the commodity into their possession in Brisbane by taking delivery of the sixty-one bags of potatoes at the Roma Street railway sheds and placing them on their stand at the markets whence they were sold. Obviously no inter-State trade was involved in the sale and delivery of the potatoes to Profke on behalf of J.E. Long & Co., the consignment to Brisbane, the receipt of the potatoes by the appellants and their subsequent sale and delivery of the potatoes by the appellants acting for J.E. Long & Co. The fact that J.E. Long & Co. were in Jennings across the border does not alter the intra-State nature of the transaction in which they were concerned. The communications of J.E. Long & Co. with Profke and the appellants' firm may in themselves have amounted to inter-State intercourse, but that does not make the transaction entered into as the result of those communications inter-State trade. It is accordingly clear that, considered as a whole, the completed transaction of which the receipt by the appellants of the potatoes forms a part does not fall within the protection of s. 92. (at p479)
9. A contention is made that no law is consistent with s. 92 if it forbids the commercial receipt of goods for purposes of sale or resale, because to do so is to deprive the recipient or his principal of an opportunity of selling them into another State, if he so chooses. But, apart from this contention, the facts make it necessary for the appellants to rely not upon any protection given by s. 92 to them or to J.E. Long & Co. in the transaction in which they engaged, but upon a claim that because the terms in which s. 15 is expressed would interfere with the freedom of inter-State commerce it is incapable of a full valid operation and that sub-s. (3) cannot be severed and cannot be read down so as to possess any valid operation within which the appellants' case would fall. (at p480)
10. The Primary Producers' Organisation and Marketing Acts 1926 to 1930 (Q.) were the subject of the decision of this Court in Peanut Board v. Rockhampton Harbour Board [1933] HCA 11; (1933) 48 CLR 266 . Peanuts as a commodity had been vested in the Peanut Board by an Order in Council pursuant to a provision of the Acts, s. 9(2). A consignment of peanuts was found in the possession of the Rockhampton Harbour Board whilst in the course of inter-State transit. They had never been delivered to the Peanut Board and had been consigned without its authority. The Harbour Board refused to deliver them up to the Peanut Board and the latter brought an action to vindicate its title to the peanuts and to compel the Harbour Board to deliver them up. The claim failed because in the language of Rich J. (1933) 48 CLR, at p 277 the "Act of 1926-1930 and the Order in Council thereunder are ineffectual to prevent the grower of peanuts from disposing of them in inter-State trade and commerce and the (Peanut) Board had no title to the peanuts the subject of the action". Starke J. closed his judgment by saying (1933) 48 CLR, at p 285 : "I think the Act operates in contravention of s. 92 of the Constitution, and so far as it does so is necessarily void". McTiernan J., however, in stating his conclusion said (1933) 48 CLR, at p 314 that he was clearly of opinion that the Peanut Board was not validly constituted and that it could not assert any rights as an owner to the consignment of peanuts, which, his Honour added, in fact had been placed on the Harbour Board's wharf for shipment to Sydney. The conclusion Dixon J. expressed (1933) 48 CLR, at p 288 was that the Order in Council could not operate to deprive the grower of peanuts of his liberty to dispose of them in inter-State commerce, and, accordingly, that the Peanut Board was not entitled to claim them from the Harbour Board. It was not necessary for the Court to consider whether the Acts were wholly invalid and, apart from what is implied by the language employed in the foregoing passages, the Court did not consider whether, as a consequence of its decision, the material provisions of the Act and the Order in Council must, in relation to the control of peanuts as a commodity, be entirely ineffectual or, on the contrary, might be capable of an operation governing peanuts which remained the subject of the domestic trade of Queensland. (at p481)
11. Some two years after this decision the Queensland legislature, by way of
amendment of the Acts, introduced the "severability
clause". It stands as s.
1A and is in terms apparently based on s. 2 of the Acts Interpretation Act
1930 (Vict.), which in turn was
founded on the familiar s. 15A of the Acts
Interpretation Act 1901-
1950 (Cth.), a section passed earlier in the year 1930. Section 1A of The
Primary Producers' Organisation and Marketing Acts is in
the following
terms:-
"This Act and any Proclamation, Order in Council or regulation made
thereunder shall be read and construed subject to the Commonwealth
of
Australia Constitution Act, and so as not to exceed the legislative power of
the State, to the intent that where any enactment contained in this Act or
provision contained in any such Proclamation, Order in Council, or regulation
would but for this section have been construed as being
in excess of that
power, it shall nevertheless be a valid enactment or provision to the extent
to which it is not in excess of that
power." (at p481)
12. The Commonwealth and the Victorian provisions are enactments applying to statutes generally, while s. 1A is directed specifically to the constitutional operation of the Acts now in question and moreover is evidently directed to the problem of severability raised by the decision of the Court that the legislation involved an inconsistency with s. 92. These circumstances provide a consideration which must weigh against arguments that provisions in the Act cannot, consistently with their meaning, be severed or given a distributive application which excludes inter-State trade or any interference with its freedom. (at p481)
13. A most important difference between the present case and that of the Peanut Board is that potatoes as a commodity have not been vested in the Potato Marketing Board. Under s. 9(1) the Governor in Council may, if certain conditions are fulfilled, declare a product of the soil of Queensland to be a commodity and he may constitute a board in relation to the commodity and extend the provisions of the Act, either wholly or with all such modifications thereof or additions thereto as are deemed by him to meet the particular circumstances, to such commodity and the board so constituted and all persons and things concerned. This may be done without vesting the commodity in the board. An Order in Council purporting to be made under the provision has, on gazettal, the same effect as if enacted in the Act: s. 9(9). Boards may be marketing boards or have more limited functions: s. 9(6) and s. 2, definition of "Board", and s. 11(3). The marketing board is appointed by the Minister of the prescribed number of elected representatives of the growers of the commodity and of a director of marketing: s. 11(1). Subject to the Act a marketing board may sell or arrange for the sale of the commodity and do all acts, matters and things necessary or expedient in that behalf: s. 14. (at p482)
14. This appeal ultimately depends on the first three sub-sections of s. 15
and it is desirable to set them out. They are as follows:-
"(1) Save as hereinafter prescribed, all the commodity shall be delivered by
the growers thereof to the Marketing Board or their
authorised agents within
such times, at such places, and in such manner as the Board may fix, or as may
be prescribed.
(2) All the commodity so delivered shall be deemed to have been delivered to
the Board for sale by the Board on behalf of the growers
thereof.
(3) Any person who, save as hereinafter prescribed, sells or delivers any of
the commodity to or buys or receives any of the commodity
from any person
other than the Board, shall be liable to a penalty not exceeding five hundred
pounds." (at p482)
15. Section 15 contained three further sub-sections, but by Order in Council
they were replaced for the purpose of potatoes as a
commodity by a new section
numbered 15A. The substituted provision is as follows:-
"The Board may from time to time and upon such terms and conditions as it
may determine either generally or in particular cases
grant such exemption or
partial exemption as it may deem fit in respect of any Act, matter or thing
under the said Acts, or any regulation
or Order in Council made thereunder.
The Board may, at any time, revoke such exemption." (at p482)
16. Section 16 of the Act provides that all the commodity delivered to the
board shall be delivered in the name of the grower and
if so prescribed the
grower shall furnish with each consignment a certificate of merchantable
quality. Section 17 provides that the
tendering of the commodity by any person
to an authorized agent, that is, to any person authorized by the board to take
delivery
of the commodity on their behalf in the exercise of their powers
under the Act, for acceptance of delivery by him shall be prima-facie
evidence
of an intention to deliver it to the board to be disposed of by the board in
accordance with the Act. Orders in Council
have, for the purpose of potatoes
as a commodity, replaced s. 18 of the statute with another s. 18, consisting
of seven sub-sections.
Sub-section (1) provides that subject to sub-s. (3),
which deals with zoning production, the Potato Marketing Board shall not
refuse
to accept from any grower any of the commodity which is of the
prescribed quality or conforms with the prescribed standard or is
accompanied
by a certificate of merchantable quality, if one is prescribed, "provided that
the commodity is delivered in accordance
with this Act at or within such time
or times as shall from time to time be fixed by the Board". Sub-section (2)
provides for a return
to the grower on a pooling basis. It is as follows:-
"Subject to this Act, the Board shall, out of the proceeds of the commodity
disposed of by the Board under this Act, make payments
to each grower of the
commodity delivered to the Board, in respect of the commodity, delivered by
him, on the basis of the net proceeds
of the sales of all of the commodity of
the same quality or standard delivered to and sold by the Board from such
portions of the
State and/or during or covering such periods of time as may be
prescribed and the proportions of such commodity so delivered by such
grower
from each portion of the State and/or during each such period of time." (at
p483)
17. By sub-s. (3) a power is given to the board to regulate deliveries of the commodity by growers to the board according to a method elaborately prescribed. In effect the board is empowered to fix production zones, determine according to the acreage planted the proportionate quantity of potatoes each grower may deliver and refuse to accept the excess or, if the board accepts such excess, deal with it in a special manner. Sub-section (4), for the purpose of ascertaining the net amount payable to the grower, makes final the board's decision on quality, dockages, charges and deductions. Sub-section (5) relieves the board of liability to the grower for damage to the commodity before delivery to the board. Sub-section (6) authorizes a deduction from the net proceeds of sales of two per cent for working expenses. Sub-section (7) empowers the board to issue licences to persons to trade in the commodity as wholesale dealers and prescribes the form of licence, which is expressed to be subject to the Acts and Regulations and to any exemption therefrom granted under s. 15A. Presumably the licensee is exempted under s. 15A. Section 19 of the Act provides for the issue to the grower delivering the commodity of a certificate in a prescribed form. The only other provision that it is necessary to mention is s. 20, which enables the board to invalidate contracts relating to the sale of the commodity. The contract may be made in or outside Queensland and before or after the extension of the Act to the commodity. Dependent or collateral contracts with respect to the commodity are invalidated with the principal contract. Sub-section (3) of s. 20 provides that nothing in the section shall apply to a commodity the subject of an inter-State contract. The purpose of invalidating the contracts probably is to make certain that there shall be no liability in damages and the inclusion of contracts made in Queensland after an extension of the Act to the commodity notwithstanding s. 15 may be due to a doubt whether the illegality arising from that section would afford an answer to actions for damages covering every case. The form of sub-s. (3) of s. 20 excludes, not inter-State contracts, but a commodity subject to an inter-State contract. It is a provision of the Act of 1926 and is apparently based on the assumption that what puts a commodity into inter-State trade is "an inter-State contract" and that thereupon all transactions in reference to it are protected by s. 92 from invalidation by State law. (at p484)
18. In dealing with the questions that have been raised upon the foregoing provisions in their application to the circumstances that have been stated it is logical to begin with sub-s. (3) and its operation. For it is upon sub-s. (3) that the charge rests and it needs no argument to show that independently of the invalidating effect of s. 92 the facts fall exactly within its words. The appellants' firm did receive potatoes, being a commodity within the meaning of the Act, from a person other than the board, namely, from the Queensland Government Railways at Roma Street. The transaction in the course of which the commodity was so received involved no actual inter-State trade. Why should it not be within the application of sub-s. (3)? Certainly the language in which sub-s. (3) is expressed, interpreted naturally, and without the imposition of any artificial restriction by reference to constitutional limitations, extends to inter-State transactions upon which it cannot validly operate. To that extent it would be invalid. But it is a provision applying distributively, that is to say, it applies to each and every receipt of a commodity or purchase or sale or delivery within its terms separately and independently of every other receipt purchase sale or delivery. The very purpose of such provisions as s. 1A as understood in this Court and repeatedly applied is to establish a presumption that to the extent that its operation is within the power of the legislature a law is to be valid notwithstanding that as expressed it is in excess of power: see Bank of N.S.W. v. The Commonwealth (1948) 76 CLR, at p 369 . Two answers were given, each depending upon a conception of the extent of the protection conferred by s. 92. The first arises upon the facts. It is as follows. When the appellants received the sixty-one bags of potatoes the offence, if offence there be, was complete and it mattered not that afterward they were sold in an intra-State transaction. The receipt of the goods was for and on behalf of a principal in New South Wales. Section 92, so it is argued, protects him, and his agent, from interference by State law in obtaining or accumulating goods for importation or sale into New South Wales. He cannot trade into New South Wales without goods and he is protected in the essential steps towards that end, not only with respect to goods devoted to sale for delivery into New South Wales, but in respect of goods which may or may not be disposed of in an inter-State transaction, pending a decision between inter-State and intra-State sale or delivery. There is no basis in fact for this contention. For when, before the arrival of the potatoes in Brisbane, Butt telephoned to the appellants' firm at Roma Street, Brisbane, and instructed them to take delivery of the consignment of potatoes and sell them on commission, that amounted to an instruction to sell them in the ordinary domestic trade of Queensland. Thus, before the actual receipt of the potatoes constituting the offence, the owner had decided upon intra-State sale of the potatoes. This is what the magistrate meant when he said that he was of opinion that when the owner of the potatoes decided to let them remain in Brisbane and be sold there, s. 15 had full application. (at p485)
19. The second answer consists in a contention made on the footing that s. 92 protects the receipt of goods in anticipation of a sale or other disposition which may turn out to be inter-State or intra-State according to the recipient's decision or events. On that footing it is impossible, so it is contended, to place upon the application of the word "receive" in s. 15(3) any limitation which will at once take it outside s. 92 and leave it to any real operation. Again the facts provide no basis for this contention, for the receipt of the potatoes by the appellant was in anticipation of and for the purposes of their being sold in Queensland. (at p485)
20. There is, it will be seen, but one basis for both these contentions. They attempt to give to s. 92 an operation which goes beyond the protection of transactions of inter-State trade and commerce, even beyond the protection of acts and transactions antecedent to inter-State trade but inseparably connected with it, and extends the constitutional protection to acts which may or may not lead to transactions of inter-State trade and at best can only be preparatory to transactions which may or may not prove to have an inter-State character. It is an attempt to give a new application to s. 92. It has no support in any decided case or judicial pronouncement and it involves an unwarranted extension of the operation of the provision going beyond the widest purpose hitherto ascribed to it. (at p486)
21. But an alternative contention was made for the appellants with reference to sub-s. (3) of s. 15, considered apart from sub-s. (1). The contention, which was mentioned in an earlier part of this judgment, invokes as an authoritative illustration of what must be excluded from the operation of such a provision in order to satisfy s. 92, the description of excluded transactions contained in the Victorian legislation dealt with in Matthews v. Chicory Marketing Board (Vict.) [1938] HCA 38; (1938) 60 CLR 263, at pp 273, 274, 283 , and accepted as sufficient by Latham C.J. and Starke J. With such support as this illustration lends, it is then urged that an attempt to confine the application of the word "receives" in s. 15(3) so as to work an exclusion of a like description of transaction would leave the receipt of the sixty-one bags of potatoes on 17th May 1950 by the appellants outside the residual operation of the sub-section. (at p486)
22. This contention fails in fact and in law. It fails in fact because the sixty-one bags of potatoes were not the subject of inter-State commerce, they were not required for the purpose of inter-State commerce and they were not intended to be used in inter-State commerce. This is the language of the Victorian provision and to say this negatives the application of the criteria it adopted, the criteria said to have been judicially accepted. The contention fails in law because it adopts an erroneous approach to the question whether, as a result of the "severability clause", s. 1A, sub-s. (3) validly operates within constitutional limits and yet embraces the facts of this case. What s. 1A does is to confine the distributive application of s. 15(3) to the field left open by s. 92. Once it is seen that the receipt of the sixty-one bags of potatoes belongs entirely to that field and that the transaction in which it forms a step falls within it, that is enough. (at p486)
23. It follows from what has been said that, considering sub-s. (3) of s. 15 independently of sub-s. (1), it has a valid operation which prohibited the appellants from receiving the commodity from the Queensland Government Railways on the occasion charged. But it is denied, on behalf of the appellants, that sub-s. (3) can be considered independently of sub-s. (1). The validity of sub-s. (1) is attacked and it is claimed that sub-s. (3) is dependent upon it and must fall with it. But is the relation of sub-s. (3) to sub-s. (1) such that s. 1A cannot effect a severance, assuming that sub-s. (1) proves to be invalid? Sub-section (1) provides that all the commodity shall be delivered by the growers to the marketing board within the times, at the places and in the manner the board fixes or the Governor in Council prescribes. That is a positive command. It is clumsily framed in the passive voice and no penalty is fixed. But it may be taken that it was intended that a failure to perform the duty it imposes should amount to an offence, and s. 31(3) provides that a person committing an offence against the Act for which no other penalty or punishment is expressly provided shall be liable to a penalty not exceeding 50 pounds. Clearly enough, however, it was meant to impose a duty on each grower in respect of the commodity he produced and not a duty upon all jointly and collectively in respect of all the commodity produced, so that each would be responsible for the delivery, not only of his own product, but of the product of all other growers. (at p487)
24. It is argued that sub-s. (3) was intended to be ancillary to or consequential upon the obligation thus imposed by sub-s. (1). In other words the sub-section imposed a prohibition to take effect only because sub-s. (1) required the delivery of the entire commodity (save for the statutory exceptions allowed) to the marketing board. To this there is more than one answer. In the first place, the argument has no support in the actual text of the two sub-sections and is but a speculative explanation of the supposed policy of the provisions. In the second place, a more probable explanation of the provisions is that sub-s. (3) was intended to drive the producers of the commodity to deliver to the marketing board by heavily penalizing any other disposition by them or by any other person who might obtain the commodity from a producer. Thus it may be regarded as a parallel provision designed to induce deliveries to the board. Thirdly, the operation of sub-s. (1) is dependent on the Governor in Council prescribing, or the marketing board fixing, times, places and a manner for delivery, whilst the operation of sub-s. (3) awaits the fulfilment of no condition precedent. The prohibition contained in sub-s. (3) therefore applies before the duty under sub-s. (1) arises and even though, because of inaction on the part of the authorities, it never arises. This is a strong indication that sub-s. (3) does not so depend upon sub-s. (1) that notwithstanding s. 1A it could not survive the invalidation of the latter sub-section. On the other side there exists in the form of s. 15 a consideration to which attention was directed by McTiernan J. during the argument. It was pointed out that in sub-s. (2) the commodity which is to be deemed to be delivered to the board for sale on behalf of the growers is the commodity "so delivered", that is to say, delivered in conformity with the directions contained in or given pursuant to sub-s. (1). From this, it was suggested, it might follow that if the deliveries were made independently of sub-s. (1) on the footing that the sub-section had no compulsive force there would be nothing to require the board to sell the commodity on behalf of the growers. But a scrutiny of the legislation, including s. 18 as replaced by the orders in council, shows that even were there no other sub-section in s. 15 than sub-s. (3) the scheme of the Act for marketing potatoes would work in the same way. Section 18(1) prevents the board from refusing to accept the potatoes, if they are of the required quality and standard and are accompanied by a certificate of merchantable quality, unless the refusal is in pursuance of the zoning provision contained in sub-s. (3). The reference in the proviso to s. 18(1) to delivery in accordance with the Act cannot deprive s. 18 of operation simply because a compulsive provision requiring delivery is found to be without force. The delivery cannot for that reason be any the less in accordance with the Act. Nor does the reference to times fixed by the board have such an effect. It allows of the board fixing times, that is all, whether they do so in purported pursuance of s. 15(1) or they leave it, under that sub-section, to be prescribed by regulation. Sub-section (2) deals with the distribution of the proceeds of sale of the commodity and so makes it impossible to assign to sub-s. (2) of s. 15 the role of a provision indispensable to the scheme. (at p488)
25. For these reasons sub-s. (3) ought not to be considered as inseverable from sub-s. (1) if sub-s. (1) proved to be wholly invalid. (at p488)
26. But is it possible to regard sub-s. (1) as wholly invalid? Let it be supposed that s. 92 necessitates a drastic restriction of sub-s. (1) to ensure the freedom of inter-State trade in commodities. Yet sub-s. (1), as has already been pointed out, has a distributive application. It applies to each and every grower in respect of so much of the commodity as he has produced. Moreover, it is a general provision applying not only to potatoes but to all commodities for which a marketing board may be established. However drastic may be the restriction imposed upon sub-s. (1), such a provision having such a distributive application must under s. 1A remain capable of applying to any failure to deliver unprotected by s. 92. It is argued in effect that a failure to deliver can never be unprotected by s. 92, because a law which imposes upon the producer or for that matter any other owner of a commodity an obligation to deliver it to a marketing authority can have no operation which is not opposed to s. 92. For non constat that the owner may not sell it inter-State or otherwise put it into inter-State trade, and he must not be hindered or prevented from exercising his choice so to dispose of it on the one hand or on the other to sell it in the course of the domestic trade of the State. It is not the occasion to examine this view of s. 92. For a simple illustration will show that there must be room for the valid operation of s. 15(1). The reason is that there may be cases where the failure to deliver is the result of the disposal of the commodity by an intra-State sale. Suppose a grower of potatoes in Queensland as soon as he plants his acreage contracts with a merchant whose trade is confined to the domestic market to sell the potatoes to him and that the grower delivers the potatoes on his farm to the buyer as he digs them. The supposition means that the time fixed by the board has not elapsed. How could he by invoking s. 92 avoid the application to him of sub-s. (1), after the time has elapsed? What inter-State trade in those potatoes could there be for which he could claim the protection of s. 92? Plainly s. 92 can have nothing to say to such a case. But, once it is seen that some operation must be conceded to s. 15(1) as the result of s. 1A, then all foundation disappears for the argument that sub-s. (3) fails because of the invalidity of sub-s. (1). (at p489)
27. In the end the case comes back to two familiar and perhaps simple considerations, namely, that a severability clause operates to confine a general prohibition to cases within the legislative power of which s. 92 does not deprive a State, and that acts, matters and things which do not go outside the domestic trade of a State are within that power. Accordingly the appeal should be dismissed with costs. (at p489)
ORDER
Appeal dismissed and order nisi discharged with costs.
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