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High Court of Australia |
SWIFT AUSTRALIAN CO. (PTY.) LTD. v. BOYD PARKINSON [1962] HCA 41; (1962) 108 CLR 189
Constitutional Law (Cth)
High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Taylor(4), Menzies(5), Windeyer(6) and
Owen(7) JJ.
CATCHWORDS
Constitutional Law (Cth) - Inconsistency of State and Commonwealth Regulations - Premises registered under Commonwealth Regulations as establishment at &which operations of slaughtering poultry for export might be carried on - Large quantities of poultry killed for export but only small proportion in fact exported - Appellant convicted of slaughtering poultry in a slaughter-house not licensed in accordance with State law - Intention - Evidence - The Constitution (63 & 64 Vict. c. 12), s. 109 - Commerce (Meat Export) Regulations (Cth), Pt II - The Poultry Industry Acts, 1946 to 1959 (Q.), reg. 50A.Constitutional Law (Cth) - Excise - Appellant occupier of butcher's shop - Convicted of failure to pay fee prescribed by State regulation for purpose of defraying expenses of inspection of meat for sale and of carrying Act into effect - Invalidity - The Constitution (63 & 64 Vict. c. 12), s. 90 - The Slaughtering Acts, 1951 to 1958 (Q.) - The Slaughtering Regulations of 1953 (Q.), reg. 53.
HEARING
Sydney, 1962, April 9, 10, 11; August 8. 8:8:1962DECISION
August 8.2. The regulations provide that where goods have been examined or marked by an inspector for export, the Department may permit the goods to be removed from a registered establishment for consumption within the Commonwealth. One condition is that official marks, other than those of a permanent nature, are removed from the goods (reg. 92). Whether this regulation was applied does not appear. It will be seen, however, that the predominant trade in the birds killed was within Australia and it may be said at once that although inter-State trade is within federal legislative power it is not within the scope or purpose of the Commerce (Meat Export) Regulations. (at p195)
3. It is in respect of the proportion of birds killed on 15th September 1960 which was not appropriate for the export trade but was required for the domestic trade that the complaint upon which the defendant company was convicted was laid under the State Act and regulations. The complaint alleged that the company did contravene a provision of reg. 50A made under The Poultry Industry Acts, 1946 to 1959 in that the company did slaughter poultry, the flesh of which was intended to be used for the food of man, at a place namely Ann Street, Maryborough, such place not then being a licensed slaughter-house for poultry under the said Acts. Now the regulation which, apart from any conflict with federal law, has the force of law under the State statute, includes the following provisions - "50A. (1) No person shall slaughter at any place other than at a licensed slaughter-house for poultry any poultry the flesh of which is intended to be used for the food of man; provided that this clause shall not apply to poultry killed solely for the use and consumption of the owner of such poultry or of the members of his family. (2) Any person who establishes or keeps an unlicensed slaughter-house for poultry shall be guilty of an offence against these regulations. . . . (6) The Chief Inspector may refuse to grant or renew or transfer a license for a slaughter-house for poultry or may cancel any such license already issued if such premises used for the slaughter of poultry are not built as prescribed or do not possess proper and sufficient accommodation or proper and sufficient equipment as prescribed; or are not properly maintained and kept in an hygienic manner; or if the appropriate fee for the renewal of such license has not been paid before the Thirty-first day of January in each year, the Chief Inspector may cancel such license." (at p196)
4. It is obvious that sub-reg. (1) of reg. 50A has expressed in wide general terms a prohibition of killing poultry with no limitation upon its application; so far as the words go it applies to an establishment which is concerned in the export trade. On the other hand, the field which the Commerce (Meat Export) Regulations occupy is that of regulating the killing and preparation of meat and poultry for export. But they seem to occupy that field to the exclusion of State law. That I think may be stated as the result of O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565 ; O'Sullivan v. Noarlunga Meat Ltd. (No.2) [1956] HCA 9; (1956) 94 CLR 367; (1957) AC 1; (1956) 95 CLR 177 . Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. There would be no inconsistency with the occupancy by the federal law of the field of the control or regulation of the preparation of meat and the like for export if State law dealt with the sale in the course of the domestic commerce of the State of meat and poultry which had been slaughtered. The regulation of all the handling and distribution of meat going into home consumption would be completely consistent with the law of the Commonwealth dealing with the slaughter and preparation of meat and poultry for export even though the actual goods had been slaughtered under the supervision of the federal authorities in pursuance of the Commonwealth law and afterwards allowed to go into the domestic commerce of the State. The whole difficulty in the present case is that both the law of the Commonwealth expressed in the Commerce (Meat Export) Regulations and of the State, expressed in the regulations under The Poultry Industry Acts, 1946 to 1959, take the killing as the essence of the thing they control. The Commerce (Meat Export) Regulations sanction the killing provided it is in accordance with the very close regulation of the subject which they impose. The State provision prohibits the act of killing unless it is in accordance with the regulations promulgated under The Poultry Industry Acts. As the latter is expressed in wide general terms it must to some extent collide with the Federal measure, that is unless it is read down. Section 39 of the State Act provides for the case of the text of a provision being so expressed that it would exceed power if not read subject to the Commonwealth Constitution, but what we are concerned with here is not that but conflict with federal law. Section 109 says that in such a condition of affairs the State law shall to the extent of the inconsistency be invalid. It is said on behalf of the appellant company that the extent of the inconsistency is the killing of poultry at an establishment registered under the Commonwealth regulations whatever may be the ultimate destination of the bird. One reason given is that you cannot distinguish in the operation between the birds that will and those that will not be exported. Before the slaughtering of a pen of poultry no one can say whether after being killed they or some of them will be exported or go into domestic commerce. It depends on the orders that come forward, on the choice that is made and so on. For that reason and because the act of killing is taken as the criterion it is said that once the State law also takes killing as its test of what is prohibited, and makes its law general and undiscriminating, there is no means of cutting down the State law by ascertaining the extent of the inconsistency on any basis depending upon the actual or intended destination of the slaughtered poultry. The answer appears to me to rest on the facts of the case and upon the nature of the charge. To deal first with the nature of the charge, sub-reg. (1) of reg. 50A uses the generic term poultry. So far as the State law is concerned it does not require a particular identification of the particular bird slaughtered. It is enough that poultry as a description of bird is slaughtered at the time or on the occasion when it is done at a place which is not a licensed slaughter-house for poultry, that is, licensed under State law. The charge itself contained in the complaint takes advantage of this fact and alleges simply that the company did slaughter poultry at a place not a licensed slaughter-house. Holding this in mind it is necessary to go back to the facts of the case. On 15th September 1960 those conducting the operations of the company at Ann Street, Maryborough, caused to be slaughtered a large number of birds, five per cent of which or thereabouts they knew would be the subject of the export trade. They knew that a proportion estimated at fifty per cent would be sold as part of the domestic trade of Queensland and the difference would be sold in inter-State trade. They caused this ninety-five per cent or thereabouts to be slaughtered at a place which was not licensed under State law. It seems to me that the answer to the contention of the defendant company is simply that it is unnecessary to identify any of the birds individually which formed part of the huge excess over the proportion destined for the export trade. It may be said that this solution of the difficulty gives no precise logical measure of the extent of the inconsistency of the State law with the federal law. But is that so? The inconsistency may be said at least to extend to exclude the operation of State law from all killing directed in point of quantum to export and to anything that is incidental thereto. Here it is obvious that as at the date in question the premises licensed under the Commerce (Meat Export) Regulations were being used to a dominant extent for the killing and preparation of poultry to be marketed within Australia and largely within Queensland and not to be exported. It may be conceded that as the birds went to the slaughter a bystander could not point to a particular bird and say "that will be consumed in Queensland" but he could say "Fifty per cent of these birds will be consumed in the State and little more than five per cent will be exported abroad". It appears correct to say that federal law does not warrant, authorize or control the killing of the surplus quantity put through the works with no bona fide intention of exportation. (at p198)
5. For these reasons I think that the appeal should be dismissed.
(No. 19 of 1961.)
6. This appeal is by a defendant from a conviction by a Court of Petty Sessions at Brisbane for an offence against The Slaughtering Acts, 1951 to 1958 of the State of Queensland and the regulations thereunder, consisting in a failure to pay fees. The fees are prescribed by reg. 53 of The Slaughtering Regulations of 1953. The complaint alleges that the defendant company, being the occupier of a butcher's shop within the meaning of The Slaughtering Acts failed to pay the fees in respect of the month of January 1960 to an inspector within thirty days after the same became due and payable. The defendant company is incorporated under the provisions of The Companies Act, 1931 to 1955 of Queensland. It owns and occupies premises at Stanley Street, South Brisbane, where it carries on extensive operations in the meat trade. Part of this process and trade is done under the name of Maxam Food Products but the distinction between the operations under one name and the other is immaterial. From its premises in South Brisbane it disposed of large quantities of meat in one form or another for export and because this was so it was registered under the Commerce (Meat Export) Regulations. We were told at the Bar that to a great extent the meat was canned. Canning meat involves breaking it up but of course that is only one purpose of breaking it up. Under s. 6 of The Slaughtering Acts, 1951 to 1958, by an amendment made in 1958, a new definition of "butcher's shop" was introduced which defines the word in unexpectedly large terms. The definition includes any building kept or used for the preparation for sale of meat or for any purpose of or connected with the storage of meat for sale or preparation for sale of meat. It includes premises kept or used for the manufacture of or preparation for sale of "precribed meats". "Prescribed meats" is an expression defined to include not only meats prescribed by Order in Council but a number of what are commonly called "small goods". Although the production for export at the South Brisbane premises is large, what was exported amounted to no more than eighty per cent of the total, the remainder being disposed of for the home market in Australia including domestic consumption in Queensland. (at p199)
7. Under The Slaughtering Acts, 1951 to 1958 there are provisions for registration licensing "butchers' shops" but the premises at Stanley Street were not licensed in that category at that time. Sometimes for particular purposes officers of the State Department of Agriculture did visit the premises to inspect but generally they relied on the Commonwealth supervision. Regulation 53 of the regulations under The Slaughtering Acts provides for the imposition and collection of fees. Regulation 53 was replaced by a new regulation made on 6th February 1958. That new regulation was in its turn amended on 8th March 1958. The fees the subject of the complaint are said to have been incurred under the regulation as so amended but the defendant company among other defences on which it relies impugns the validity of reg. 53 on the ground that it imposes duties of excise. The company contests the applicability of the provision even if it be otherwise valid but with that I shall not deal. Regulation 53, in so far as relevant, provides that "the fees payable by the occupier of an abattoir, slaughter-house or butcher's shop for the purpose of defraying the expenses of inspection of meat for sale and of carrying this Act into effect shall be as follows, that is to say: - ". Then five classes of meats slaughtered are given with fees ranging from 1d to 1s. There then follows the imposition of the fee upon which this case turns. "In the case of a carcass which has been broken up, the following fee shall be paid by the occupier: - Beef - 1001b. or portion thereof 1s 0d . . ." The regulation proceeds: "Such fees shall be paid by the occupier to the inspector on the last day of each month and be accompanied by the returns in the forms of" certain schedules required to be delivered by specified regulations. The regulation proceeds: "The fees prescribed by the regulations shall be payable as prescribed irrespective of whether the whole or part only of the carcass is removed from the slaughterhouse for consumption in Queensland or in any part of the Commonwealth outside Queensland." The defendant company is the "occupier" of the "butcher's shop" constituted by the premises at South Brisbane. It is admitted that during the month of January 1960 certain beef from broken-up beef carcasses was removed from the company's premises in South Brisbane for consumption in the Commonwealth both inside and outside the State of Queensland. Apparently the company paid fees in respect of broken-up beef removed from its premises for consumption in Queensland but refused to pay fees prescribed by reg. 53 in respect of broken-up beef carcasses removed from its premises for consumption in the Commonwealth but outside Queensland. However, the question whether the regulation involves an imposition of an excise and is therefore void under s. 90 of the Commonwealth Constitution is not affected by these facts. It is evident from the introductory words of the regulation that some attempt is made to represent the fees as a charge for services. But when the regulation is examined it appears that the fees are not payable in respect of any particular service but generally for the purpose of defraying expenses. Further, and this perhpas is fatal to the argument, the expenses are not merely those of inspecting meat but those of carrying the Act considered as a whole into effect, that is to say, for administration expenses generally. The fees collected are payable into Consolidated Revenue and there they are of course subject to appropriation by Parliament. They are not directed by law into any particular fund the expenditure of which is limited even to the administration of the Act. Further, under the Act it is quite impossible for beef to be broken up without incurring fees for, wide as the definition of butcher's shop is, the regulation itself extends to the occupier of an abattoir or slaughter-house as well. The case appears to me really to be governed in principle by the decision of the Court in Parton v. Milk Board (Vict.) [1949] HCA 67; (1949) 80 CLR 229 , although that case involved additional considerations. The fees seem to me clearly to be imposed as a tax: it is a tax upon a step in the preparation of the commodity for the consumer and small as it might be considered, its manifest tendency is to affect the price: it is a cost likely to be incorporated therein. Accordingly I do not think there is any ground upon which the direct imposition of the fees upon an essential step in the preparation of a commodity for sale in Australia can be treated as anything but an excise within s. 90. As s. 90 brings the imposition of duties of excise within the exclusive power of the Commonwealth it follows that the regulation made by the State is to that extent void. Accordingly, the charge against the defendant company did not lie and ought to have been dismissed. The appeal should be allowed, the order of the magistrate set aside and the complaint before him dismissed. (at p201)
McTIERNAN J.(Nos. 18 and 19 of 1961.)
2. The first conviction was for a breach of the licensing provisions of The Poultry Industry Acts, 1946 to 1959 in that the appellant slaughtered poultry at its Maryborough premises which were not licensed as required by the Acts. The principal contention of the appellant was that the licensing provisions of the Acts were inconsistent with the Commerce (Meat Export) Regulations made under the Customs Act 1901-1954 and the Commerce (Trade Descriptions) Act 1905-1950, that by virtue of s. 109 of the Constitution the State of Queensland had no power to require licensing of its premises and therefore the conviction should be quashed. (at p201)
3. The general question of inconsistency between State and federal provisions relating to the licensing of premises for the killing of meat was considered by this Court in O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565 . It is argued that the decision in that case indicates that the Commonwealth provisions are so extensive that they deprive the State of the right to license abattoirs at all. But it must be remembered that in O'Sullivan's Case (1954) 92 CLR 565 , the South Australian regulations then in question were expressly directed to the conditions under which stock could be slaughtered for export; there is no such limitation in the present case. The limits of the Commonwealth power to license abattoirs are, I think, as I stated them to be in O'Sullivan's Case (1954) 92 CLR 565 : "Section 52a applies only to slaughtering for export. If the section extended to all slaughtering for human consumption without distinguishing between home consumption and the export trade it would be open to attack upon the ground of inconsistency with the regulations . . . but then the section could be attacked only to the extent of its application to slaughtering for export" (1954) 92 CLR, at p 581 . The Judicial Committee of the Privy Council said in the same case: "Their Lordships are unable to find in the regulations an intention to override generally all provisions of a State code dealing with slaughtering" (1957) AC 1, at p 29; (1956) 95 CLR 177, at pp 186, 187 . In the present case, the conviction was entered in respect of premises allegedly used for slaughtering poultry for home consumption and to this extent the State of Queensland has power to make laws with respect to the licensing of premises. (at p202)
4. The appellant further argued that it was not proper for a conviction to have been entered because there was no evidence that, on the day in question, any poultry which was slaughtered was for home consumption: he relied on a statement by Fullagar J. in O'Sullivan's Case (1954) 92 CLR 565 to demonstrate that all the poultry was being "slaughtered for export", despite evidence that it was anticipated that approximately eighty per cent of the kill would not be exported. Apart from this statement, no doubt the magistrate would have been justified on the evidence in holding that birds for home consumption had been slaughtered in unlicensed premises on that day. The statement in question is as follows: "Whether 'slaughter for export' is taking place is not, from the point of view of the legislator, a question which depends entirely on some intention in the mind of the owner or slaughterer of the beast - an intention which may change from time to time as operations proceed. The whole process from killing to packing will be conditioned in certain respects by the predetermined destination of the meat, and 'slaughter for export' is, in the mind of the legislator, a definite objective conception distinct from slaughter for home consumption" (1954) 92 CLR, at pp 596, 597 . I do not think that this statement goes so far as to say that, if the predetermined destination of meat really is for home consumption, it can be brought notionally into the category of "slaughter for export" by handling it in accordance with Commonwealth regulations. A magistrate is surely entitled to look behind the method of slaughter and ascertain for himself the destination of the meat, and, as I have said, I see no reason to disagree with his findings of fact. (at p203)
5. The appellant further contended that the degree of supervision which the Commonwealth exercised over the process of slaughter was so detailed that it would be impracticable for any slaughterhouse to comply with State regulations if it conformed with Commonwealth regulations and for that reason the State regulations were inconsistent. I think that this argument is sufficiently disposed of by the statement of Latham C.J. in R. v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 : "On several occasions the argument has been pressed upon this Court that, where inter-State or foreign and intra-State maritime trade and commerce are so intermingled that it is practically essential to control all of them as one subject matter, the Commonwealth Parliament has power under s. 51 (i.) and s. 98 of the Constitution to deal with intra-State navigation and shipping. A similar argument could be applied to railways the property of any State with respect to which the Commonwealth has power to legislate under the trade and commerce power (see Constitution, s. 98). This argument, however, has always been rejected by the Court. Although foreign and inter-State trade and commerce may be closely associated with intra-State trade and commerce, the Court has uniformly held that the distinction drawn by the Constitution must be fully recognized, and that the power to deal with the former subject does not involve an incidental power to deal with the latter subject" (1936) 55 CLR, at p 628 . These words are applicable to the facts of the present case. The American doctrine of "commingling" is not part of Australian constitutional law. (at p203)
6. For these reasons, I am of the opinion that the first appeal should be dismissed. (at p203)
7. The second complaint relates to the non-payment by the appellant of fees prescribed by reg. 53 of The Slaughtering Regulations made pursuant to The Slaughtering Acts, 1951 to 1958 (Q.); it is clear that the fees in question were not paid. The complaint refers again to meat in home consumption and, in so far as the appellant argued that these provisions are inconsistent with the regulations of the Commonwealth, I think that the observations already made in respect of the regulations under The Poultry Industries Acts apply, and that the conviction cannot be set aside on the ground of inconsistency with Commonwealth regulations. (at p204)
8. A further point arises in this appeal, namely, whether the fees set out in reg. 53 are invalid because they are duties of excise and therefore reserved to the Commonwealth by s. 90 of the Constitution. The regulation sets out a table of fees "payable by the occupier of an abattoir, slaughter-house or butcher's shop" being a pecuniary payment of a fixed amount for every beast slaughtered. Further provisions require the occupier to furnish a return of meat so slaughtered and that the occupier shall be liable to a penalty not exceeding fifty pounds on failure to pay such fees. It is argued that the payments imposed on the occupier will not be an excise if they are payments by the occupier for services rendered by the State. In Matthews v. Chicory Marketing Board (Vict.) [1938] HCA 38; (1938) 60 CLR 263 , Dixon J. describes the charge which in Crothers v. Sheil [1933] HCA 42; (1933) 49 CLR 399 was held not an excise in these terms: "a charge for administration expenses, advances, sinking fund and interest (1938) 60 CLR, at p 289 ". It is argued for the respondent that the pecuniary exaction in the present case falls within that category and, in support of that argument it cites figures to show that the amount exacted was less than the costs of administration. This argument is of doubtful worth, since the scale stands whatever may be the costs of administering the Act. (at p204)
9. When the introductory words to the scale of fees in reg. 53 are examined, it is seen that the purpose of the levy is "of defraying the expenses of inspection of meat for sale and of carrying this Act into effect". Had the last seven words been omitted, it is clear that the charges might be classified as a payment for services, but it is necessary to consider the effect of these seven words. (at p204)
10. In Hartley v. Walsh [1937] HCA 34; (1937) 57 CLR 372 , this Court had to consider the character of a compulsory payment levied upon fruit growers in respect of a fruit marketing scheme, the payment being calculated by reference to the value of fruit. It was held that such a payment was not an excise. Latham C.J. said: "This contribution is specifically provided as a contribution towards carrying out the Act and as a payment for services rendered and cannot, in my opinion, be regarded as a tax forbidden by s. 90 of the Constitution" (1937) 57 CLR, at p 376 . If this is a correct statement of the law, then the respondent's submission must be correct. (at p204)
11. On the other hand, other statements have shown a narrower view. In Matthews v. Chicory Marketing Board (Vict.) [1938] HCA 38; (1938) 60 CLR 263 , Rich J. said: "If the State authorizes a levy upon a commodity which in other respects is an excise, I think it is difficult to see how the purpose for which the money is obtained can affect the question whether it comes within an excise" (1938) 60 CLR, at p 281 . (at p205)
12. In this context, the decision of this Court in Crothers v. Sheil [1933] HCA 42; (1933) 49 CLR 399 is of little assistance, because in that case, there was no pecuniary enactment from the producer or manufacturer. Attorney-General (N.S.W.) v. Homebush Flour Mills Ltd. (1937) 56 CLR 391 concerned a tax which went beyond the expenses of administration. The payments in Hopper v. Egg and Egg Pulp Marketing Board (Vict.) [1939] HCA 24; (1939) 61 CLR 665 were deductions from the money held by the board and not exactions from the producer. In Matthews v. Chicory Marketing Board (Vict.) [1938] HCA 38; (1938) 60 CLR 263 , the payment was held to be a tax on commodities, as distinct from administrative payments. The contribution in Parton v. Milk Board (Vict.) [1949] HCA 67; (1949) 80 CLR 229 was held to be purely a tax for public purposes and not for the performance of services for the sellers and distributors of milk from whom it was exacted. Dennis Hotels Pty. Ltd. v. Victoria [1960] HCA 10; (1960) 104 CLR 529 also was not concerned with charges for services, since it turned on the characterization of licence payments, although it does assist indirectly by showing that the fact that a payment is quantified by reference to commodities is no reason for holding that it is an excise. (at p205)
13. In the light of these dicta, it is necessary to consider the nature of the payments imposed on the occupier by reg. 53. Unfortunately, this is mostly a matter of inference from words which are not explicit. It is certainly a compulsory payment, but that fact does not assist in distinguishing between an administrative levy and an excise duty. It is payable by the occupier and is liable to be passed on to the consumer: but this is true both of charges for services and excise duties. It is levied on the occupier with respect to goods and calculated on the value of goods, but, as Dennis Hotels' Case [1960] HCA 10; (1960) 104 CLR 529 has shown, this does not necessarily constitute an excise; it must be at the narrowest a tax on the production or manufacture of the goods. Implicit in this phrase is the notion that the levy is made on the goods themselves at some stage of their production or manufacture as distinct from a levy upon a person or a licence. (at p205)
14. I think that, having regard to the provisions of reg. 53, this payment is not a tax "on goods", but rather, in substance, a payment to the State for the right to conduct the abattoir, quantified by reference to the beasts killed. It is, to adopt the words of Kitto J. in the Dennis Hotels' Case [1960] HCA 10; (1960) 104 CLR 529 , "a tax which has no closer connexion with production or distribution than that it is exacted for the privilege of engaging in the process at all" (1960) 104 CLR, at p 560 . It is paid for the right of conducting the business of the abattoir: the fact that this right wins for the State an income which it could not legally claim by an imposition on the goods directly is, as the Dennis Hotels' Case [1960] HCA 10; (1960) 104 CLR 529 has shown, irrelevant. (at p206)
15. However, if this view is wrong, I think that the statement of Dixon J. in Matthews' Case (1938) 60 CLR, at p 289 and Latham C.J. in Hartley v. Walsh (1937) 57 CLR, at p 376 show that a payment which might otherwise be classed as an excise is not an excise if it is for the purpose of services by the State to the party concerned in the administration of the Act. I therefore prefer Dixon J.'s view to Rich J.'s in Matthews' Case [1938] HCA 38; (1938) 60 CLR 263 . As I have shown, the only authority directly in point is Hartley v. Walsh [1937] HCA 34; (1937) 57 CLR 372 and I see no reason to disagree with the decision in that case so far as it is relevant to the point at issue here. (at p206)
16. Accordingly, I am of the opinion that the phrase "for the purpose of defraying the expenses of inspection of meat for sale and of carrying this Act into effect" does not invest the payments in question with the character of excise. The second appeal should be dismissed. (at p206)
KITTO J.(No. 18 of 1961.)
2. The Commerce (Meat Export) Regulations, to which I shall refer as the Commonwealth regulations, contain two provisions as to the slaughter of poultry. First, reg. 5 provides that all establishments used for the slaughter of meat "for export" shall be registered, "meat" being defined (in s. 3) to include the flesh of poultry "intended for export". Secondly, reg. 74G (1) provides that poultry "intended for export" shall be killed only at an establishment registered under the regulations for such purpose. The result is that poultry may not be slaughtered elsewhere than at an establishment registered under the Commonwealth regulations if the slaughtering is "for export" or (what amounts in substance to the same thing) if the poultry (or its flesh) is "intended for export". Every breach of the regulations is punishable: see reg. 99. (at p207)
3. There is no direct contradiction between the Commonwealth and State provisions: simultaneous obedience to both is not impossible. The inconsistency that is alleged is of the kind which exists where Commonwealth legislation exhibits an intention to lay down "completely, exhaustively, or exclusively" the law which is to govern particular conduct or a particular matter, and yet State legislation affects to make a provision governing the same conduct or matter: Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472, at p 483 , O'Sullivan v. Noarlunga Meat Ltd. (1957) AC 1, at p 28; (1956) 95 CLR 177, at p 186 . (at p207)
4. At all material times the appellant's premises were registered under the Commonwealth regulations as an establishment in which certain operations including the slaughtering of poultry for export might be conducted. The slaughtering of poultry which took place at those premises on the day to which the charge related was done in the course of an activity not directed solely to the export trade, nor yet directed solely to the home trade, but carried on for the purpose of producing a pool of meat to be drawn upon for the one trade or the other as the demand from time to time should require. Figures given in evidence suggest that the chances were in the proportion of 95 to 5 against the meat of any particular bird slaughtered going to export, but I see no relevance in the proportion. All that is important is that although every act of slaughtering had an objectively evident relevance to overseas trade, the relevance consisted only in this, that the activity which was being pursued in the appellant's premises, and in the course of which the killing was done, was being so conducted that nothing in the Commonwealth regulations would stand in the way of the exportation of any of the resultant meat which the appellant might eventually wish to export. The question which emerges, therefore, is whether the Commonwealth regulations, on their true construction, govern acts of slaughtering which have no closer or more definite relation to export than that. (at p208)
5. It is true that in consequence of a provision in reg. 4B (1) (b) of the Commonwealth regulations by which the exportation of meat is prohibited "unless the regulations have been complied with" the appellant, if it wished (as it did) to slaughter all its poultry in the one establishment without first deciding what was to be exported and what sold for home consumption, had to see that all its slaughtering was done in compliance with the Commonwealth regulations. But that was because of the operation of the regulations upon exportation; it does not mean that in the circumstances the regulations had an operation upon every act of slaughtering, at the time it was done, so as to make the doing of it an offence if the requirements of the regulations were not observed. I can see no escape from the conclusion that when regs. 5 and 74G, the regulations which do operate directly upon the act of slaughtering, speak of slaughtering "for export" and of killing poultry "intended for export" they are expressing a notion which requires in respect of each act of slaughtering that export be, at the time the act is done, the "predetermined destination" (to use Fullagar J.'s expression in the Noarlunga Case (1954) 92 CLR, at p 597 ) and not only a possible or contingent destination, of the flesh of the bird slaughtered. (at p208)
6. The appellant's contention has been that because its slaughtering was done in an establishment registered under the Commonwealth regulations for the purpose of slaughtering poultry for export, and was done in accordance with the requirements of those regulations - because, that is to say, its system of work committed every bird upon its arrival at the premises to killing and treatment to the export standard prescribed by the Commonwealth regulations, so as to be available for export - those regulations should be regarded as governing the whole process, with the result that a State regulation purporting to forbid a step in the process unless its own requirements were observed must be invalid for inconsistency. This argument is answered by what has already been said. There is no basis for the assumption that the Commonwealth regulations apply to the slaughtering of poultry whenever the poultry is in course of being so treated as to be eligible for export. They do not apply to any slaughtering but that which is specifically "for export". These words must be given their natural meaning as referring not to slaughtering for exportability; not to slaughtering as for export or for possible export; not to any slaughtering at all, except such as is characterized by a purpose of exportation objectively manifested as actually formed and existing, although not necessarily unalterable. Accordingly when it is said, as it has been said for the appellant, that the present case is one in which the poultry slaughtered had been put into an "export stream" by being taken into the appellant's establishment, and that therefore everything done in the establishment to any particular bird or its flesh should be considered as having been done "for export" unless a stage had been reached at which the appellant had taken it out of the "export stream" in consequence of a decision to divert it to home comsumption, the answer must be that on the established facts the "stream" in which the poultry was at the time of slaughter cannot properly be described, in any relevant sense, as an "export stream" any more than as a "home consumption stream". It was a stream producing meat to supply the Australian or the overseas market as occasion should require. (at p209)
7. In my opinion, therefore, the Commonwealth regulations do not show an intention to prescribe what shall be the law governing the slaughtering of poultry in such circumstances as those which existed at the appellant's premises on the relevant date, and accordingly the argument for inconsistency fails. (at p209)
8. I would dismiss the appeal. (at p209)
(No. 19 of 1961.)
9. In my opinion the appeal should be allowed for the reasons which have been stated by the Chief Justice. (at p209)
TAYLOR J.(Nos. 18 and 19 of 1961.)
2. The evidence shows that at all material times the appellant had an extensive business in the slaughter and sale of dressed poultry. It sold its products in the course of export and both locally in Queensland and in other States of the Commonwealth. In connexion with this business it maintained at Maryborough premises which were used as a poultry slaughter-house. It was said that the weekly kill was about 10,000 birds weighing 10 to 11 tons of which 7 to 8 tons were sold to purchasers in other States, 30% was sold in Queensland and a very small part of the kill was exported. According to the defendant's evidence the percentage of its products which was exported diminished from 20% in 1958 to 8 1/2% in 1959 and to 5%, or less, in 1960. The premises had been registered under the Commerce (Meat Export) Regulations ever since the commencement of the company's operations in this field and it was the holder of a certificate issued under Pt II of those regulations. The current certificate, which was in evidence, was in the prescribed form and certified that the appellant's premises had been registered as an establishment in which certain specified operations might be conducted. The only specified operations with which we need concern ourselves were "slaughtering, chilling, freezing and storage of poultry for export". (at p210)
3. Upon the evidence before him the magistrate found that the defendant at these premises slaughtered poultry "for home consumption, inter-State and export", that, on the material date, the appellant was slaughtering on the premises poultry intended for consumption in Australia and that the premises were not licensed under reg. 50A of The Poultry Industry Acts, 1946 to 1959 as a slaughter-house for poultry for consumption in Australia. The appellant, however, relying upon the decision of this Court in O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565 contends that the operations which are alleged to have constituted the offence were authorized by the Commerce (Meat Export) Regulations and, therefore, that, in so far as they were conditionally forbidden by the provisions of the State regulation in question, those provisions must be taken to have been of no effect. (at p210)
4. But the situation in the Noarlunga Case (1954) 92 CLR 565 was significantly different and it is of importance to keep in mind a clear picture of what that case decided. First of all the State legislation which was then impugned was a section of the Metropolitan and Export Abattoirs Act, 1936-1952 (S.A.) which provided that no person should in any part of the State outside the Metropolitan Abattoirs Area use any premises for the purposes of slaughtering stock for export as fresh meat in a chilled or frozen condition unless he was the holder of a licence from the Minister of Agriculture authorizing him to use those premises for that purpose. This provision expressly, and solely, directed, as it was, to the slaughtering of stock for export, was held to be in conflict with the provisions of the Commerce (Meat Export) Regulations which, though they did not, in express terms, authorize the slaughter of stock for export in an establishment registered thereunder, "clearly contemplated" that, when registration had been obtained, the operations referred to in the certificate might be lawfully conducted on the registered premises (1954) 92 CLR, at pp 592, 593 . Reference was made, inter alia, to the form of certificate prescribed and I take the case to decide that the respondent was lawfully authorized by the Commerce (Meat Export) Regulations, in accordance with the certificate which it held, to conduct upon its premises "the operations of slaughtering and freezing mutton and/or lamb for export". Upon that view the conflict between the Commonwealth and State provisions became apparent for the State legislation purported to prohibit the very operations which the Commonwealth regulations authorized and for which the premises had been registered. Further once a conflict was found to exist the inevitable result was total invalidity of the State provision for it was concerned solely and exclusively with slaughtering for export. Thereupon it became necessary to consider whether the Commonwealth regulations were justifiable as a law with respect to trade and commerce with other countries. It was held that they were. But this conclusion was based upon the view that, in substance, what the regulations did was to regulate and control the slaughter of meat for export and to do no more. What constituted "slaughter for export" was the subject of some discussion and the phrase was treated as a "composite expression which would be understood objectively in the trade". "Whether", it was said, "'slaughter for export' is taking place is not, from the point of view of the legislator, a question which depends entirely on some intention in the mind of the owner or slaughter of a beast - an intention which may change from time to time as operations proceed. The whole process from killing to packing will be conditioned in certain respects by the predetermined destination of the meat, and 'slaughter for export' is, in the mind of the legislator, a definite objective conception distinct from slaughter for home consumption." (at p212)
5. With these observations in mind I turn to the present case. Here we are concerned with a State law which purports to deal with the slaughtering of poultry generally and, to use the words of the Judicial Committee in the Noarlunga Case (1957) AC 1 ; (1956) 95 CLR 177 when speaking of a predicated "State code dealing with slaughtering generally" and which covers "any specific matters dealt with in the (Commonwealth) regulations, the latter would no doubt oust and supersede the former quoad slaughter for export" (1957) AC, at p 29 ; (1956) 95 CLR, at p 187 . Clearly, in my view, that case did not purport to decide that the owner of premises registered under the Commonwealth regulations might, upon the premises, not only slaughter stock for export but also conduct slaughtering operations for home consumption or any other purpose. On the contrary their Lordships' observation indicates that in the circumstances of which they were speaking the State legislation would continue to operate except in so far as the competing provisions were inconsistent within the meaning of s. 109 of the Constitution, that is, as they said, in relation to slaughter for export. (at p212)
6. Nor was it suggested in the Noarlunga Case (1954) 92 CLR 565 ; (1957) AC 1 ; (1956) 95 CLR 177 that it lay within the constitutional competence of the Commonwealth Parliament to authorize the holder of a certificate to slaughter stock upon his premises otherwise than for export and, thereby, to disregard any otherwise valid State prohibition on the slaughter of stock for any other purpose. Accordingly any Commonwealth measure which purported to confer such an authority would not find justification in the decision of the Noarlunga Case (1954) 92 CLR 565 ; (1957) AC 1 ; (1956) 95 CLR 177 and would require fresh consideration. (at p212)
7. There can, of course, be no doubt in the present case there is, upon the authority of the Noarlunga Case (1954) 92 CLR 565 ; (1957) AC 1 ; (1956) 95 CLR 177 , a conflict between reg. 50A and the Commonwealth regulations for the former provision, according to its terms, relates to the slaughtering of poultry generally including slaughtering for export. In so far as it relates to operations properly characterized as slaughtering for export it cannot operate to prohibit operations of that character if they are carried on pursuant to a certificate of registration issued under the Commonwealth regulations. But the appellant maintains that the State prohibition cannot govern any of its operations in its establishment registered, as it is, under those regulations. First of all it asserts that the Commonwealth regulations contemplate that slaughter for purposes other than for export may take place in a registered establishment and that it would be difficult, or impossible, to operate on some occasions under State law and at other times under federal law. Again it is pointed out that when premises are used generally for slaughtering purposes it may well be that it will be impossible to say at any particular time whether any particular kill will be exported or not. But, in my view, the first of these considerations is irrelevant to the legal problems involved whilst the second is no more than a comment intended as a foundation for the proposition that in the hypothetical case all the slaughtering operations must, regardless of any other factor, be taken to be "for export". The position, as I see it, is that although the Commonwealth may exhaustively and exclusively occupy the field of control and regulation in relation to the slaughter of meat for export the State may properly exercise the like authority in relation to the slaughter of meat for consumption within the State. It may be that pursuant to its legislative power the Commonwealth might forbid slaughtering for home consumption in an establishment registered under the Commonwealth regulations, or make some provision concerning the conditions to be observed in operations of that character if they are carried on in such an establishment. But we are not concerned with any such problem ; what we are concerned with is whether the Commonwealth can, or has purported to, authorize the appellant company to carry on slaughtering operations generally in its establishment. In my view it has not purported to do so and if in the result - and in the absence of appropriate legislative co-operation - this means that a company which wishes to undertake slaughtering operations for both purposes must, as a matter of practical necessity, set up separate establishments that is unfortunate. I do not myself see that any such necessity exists but, even if it does, this factor is not, to my mind, relevant to any question of legislative power or to any discussion of legislative conflict under s. 109. In my view the answer to the relevant question is contained in the observation, already quoted, that in circumstances such as the present the State legislation is ousted and superseded quoad slaughter for export, that is to say, to the extent to which the appellant must be taken to have been lawfully authorized by the Commonwealth regulations, according to the terms of his certificate of registration, to engage in slaughtering operations. (at p213)
8. The final question in the first appeal must therefore be whether within the most liberal meaning which ought to be ascribed to that term the slaughter of the poultry on the occasion in question here constituted in the language of the appellant's certificate the "slaughtering . . . of poultry for export". In my view it did not. The slaughtering was for the purposes of the appellant's trade generally and it would be idle to say that merely because some unidentified and insignificant portion of the kill would find its way into the export trade the whole of the operations on the premises constituted slaughter for export. Indeed I do not understand this bare proposition to be seriously contested. Rather it is suggested that because slaughtering was conducted upon premises registered under the Commonwealth regulations and in accordance with the multifarious provisions thereof and, as a result, the out-turn of the premises might have been used in the export trade if the opportunity offered, the whole of the operations constituted slaughter for export. But this is a notion which does not accord with the facts of the case ; the company had an established and extensive business and, with the exception of a small and insignificant part of its business, the demand for its products came from the local market. It was as an adjunct to that business and in order to carry it on that the slaughtering operations were conducted and to say that the whole of those operations were, in any sense, conducted for export is, in my view, entirely at variance with the facts of the case. No doubt it was open to the company, by "slaughtering for export", to build up an export pool but this was not the case. Likewise it was open to the company, if it so wished, to observe export standards in its slaughtering operations generally but this does not mean that all of its slaughtering operations were authorized by the terms of its certificate or by the terms of the Commonwealth regulations. That being so I am of the opinion that the first appeal should be dismissed. (at p214)
9. The same reasons may apply with equal force to the second appeal but the facts present some additional, though subsidiary, problems. However it is not necessary to resolve these for I find myself in agreement with the view that, in substance, the charges made by reg. 53 of The Slaughtering Regulations of 1953 are not merely inspection fees but are duties of excise. On this point I do not wish to add to what is said by my brother Menzies and, on that ground, the second appeal should be allowed and the conviction quashed. (at p214)
MENZIES J.(Nos. 18 and 19 of 1961.)
2. Furthermore, it was contended for the appellant that the fees made payable by The Slaughtering Regulations are duties of excise and their imposition is beyond the power of the State (Commonwealth Constitution, s. 90). (at p216)
3. So it is that out of these mundane matters important and difficult constitutional questions arise for determination but, before these questions can be approached, it is necessary to refer to the evidence of the company's operations at the two establishments at the material times and the findings made by the magistrates upon that evidence. (at p216)
4. The complaint of slaughtering poultry at Maryborough in unlicensed premises in breach of The Poultry Regulations was supported by evidence which showed that at the company's premises some 10,000 birds were killed weekly, of which only about five per cent were actually exported and the others were sold inter-State or for consumption in Queensland. It was the practice of the company to conduct its operations upon the premises so that all birds that were not rejected would be available for export in the sense that at every point the Commonwealth regulations were complied with, and all birds were inspected and approved for export by Commonwealth inspectors. Whether or not any particular bird was "poultry intended for export" when it was killed, it was killed and treated as if it were intended for export, but the figures show that in fact the killing which was done at the premises was partly for the purpose of providing poultry for sale in Queensland, partly for the purpose of providing poultry for inter-State trade and partly to provide poultry for export. The magistrate's findings were as follows: - "1. That the defendant was slaughtering poultry at the Maryborough premises for home consumption, inter-State and export. 2. That on the relevant date the defendant was slaughtering on the subject premises poultry intended for consumption in Australia. 3. That on the relevant date the subject premises were not licensed under reg. 50A of The Poultry Industry Acts, 1946 to 1959 as a slaughter-house for poultry for consumption in Australia." These findings were, notwithstanding some argument to the contrary, open to the magistrate upon the evidence if, as it was conceded, the second finding meant that it was intended that some of the birds slaughtered on 15th September 1960 would be disposed of in the course of the company's home trade for consumption in Australia. (at p217)
5. The charge of having failed to pay the prescribed fees for meat broken up in the company's Brisbane butcher shop in January 1960 for the purposes of inter-State trade was supported by evidence that the premises were used for the treatment of carcasses for the purposes of the company's trade in Queensland, its inter-State trade and its export trade and that, of the meat there treated, about eighty per cent was in fact exported beyond the seas. Here again the practice was followed of complying at all points with the Commonwealth regulations and submitting to a Commonwealth inspector for approval for export all meat in the condition in which it was intended to be sold, with the consequence that all meat there treated was available for export if required. It was admitted that in January 1960 beef from broken up carcasses was removed from the premises in question for consumption in Australia and that the defendant company failed to pay fees prescribed by reg. 53 of The Slaughtering Regulations in respect of the month of January 1960 in respect of beef from broken up beef carcasses removed in the said month from its said premises for consumption in the Commonwealth outside Queensland. It was further admitted that "in the month of January 1960 some of the beef which was processed at the defendant's premises at Stanley Street, South Brisbane" (i.e. the premises in question) "came from broken up carcasses". The magistrate's findings included the following: - "In January, 1960, the premises were used by defendant as a butcher shop for the preparation of meat for consumption in Queensland and in the Commonwealth of Australia and at that time defendant intended that meat prepared at the premises was to be removed from the premises for consumption within Queensland and within Australia. Such meat was prepared from broken up carcasses". In each case the magistrate's decision was made on the footing that the company's premises in question were registered under the Commerce (Meat Export) Regulations and that the State regulations under which the charge were brought were not inconsistent with the Commonwealth regulations. It was also held that the fees payable under reg. 53 of The Slaughtering Regulations were not duties of excise. In each case the company was convicted and fined. (at p218)
6. At this point I think it desirable to consider by itself the question of the inconsistency of reg. 50A of The Poultry Regulations with the Commonwealth regulations. Regulation 50A, subject to an immaterial exception, forbids any slaughtering of poultry, the flesh of which is intended for the food of man, at any place other than at a slaughter-house for poultry licensed under the regulations. It was established in O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565; (1957) AC 1; (1956) 95 CLR 177 that the Commonwealth regulations are valid laws of the Commonwealth relating to slaughtering for export and Fullagar J., with the concurrence of Dixon C.J. and Kitto J., said: - "It would perhaps have been better if we had had some evidence before us as to Australia's export trade in meat, and as to the processes involved in the killing and preparation of meat for export and for home consumption respectively. But it seems to me safe to say that Sir Garfield Barwick was entirely right when he said that the expression 'slaughter for export' is used in the relevant legislation as a composite expression which would be understood objectively in the trade. Whether 'slaughter for export' is taking place is not, from the point of view of the legislator, a question which depends entirely on some intention in the mind of the owner or slaughterer of a beast - an intention which may change from time to time as operations proceed. The whole process from killing to packing will be conditioned in certain respects by the predetermined destination of the meat, and 'slaughter for export' is, in the mind of the legislator, a definite objective conception distinct from slaughter for home consumption" (1954) 92 CLR, at pp 596, 597 . In this passage it is to be observed that "slaughter for export" and "slaughter for home consumption" were treated as conceptions distinct from one another, depending in a measure at least on "the predetermined destination of the meat". In the same case the learned judge examined the Commonwealth regulations and said that "they constitute an extremely elaborate and detailed set of requirements which must be complied with before registration can be obtained of premises to be used for the slaughter of stock for export" (1954) 92 CLR, at p 591 . His Honour referred to details of the regulations and then said: "But, if all those provisions are complied with, an approved applicant is entitled to a certificate specifying the operations which may be conducted on the premises" (1954) 92 CLR, at p 591 and then used the following words, which the Privy Council adopted (1957) AC, at pp 29, 30; (1956) 95 CLR, at p 187 : "In my opinion a State statute which has the effect of prohibiting the use of premises registered under the Commonwealth regulations for the very purpose for which they have been registered under those regulations is plainly inconsistent with those regulations" (1954) 92 CLR, at p 591 . The purpose there referred to, as has already been seen, was "slaughtering for export" and his Honour went on to say, "it appears to me impossible to deny that the regulations evince an intention to express completely and exhaustively the requirements of the law with respect to the use of premises for the slaughter of stock for export" (1954) 92 CLR, at p 592 . The conclusion followed that s. 52a of the Metropolitan and Export Abattoirs Act (S.A.), which simply forbade slaughtering stock for export without a licence under that Act, was invalid by force of s. 109 of the Constitution. It follows from this case that, to the extent to which reg. 50A forbids slaughtering of poultry for export, it is invalid. Taking his stand upon this ground, counsel for the company contended, as has already been indicated, that all poultry slaughtered on 15th September 1960 were slaughtered for export because they were slaughtered in an establishment registered under the Commonwealth regulations, that in their slaughter the requirements of the regulations were complied with and that the company, although aware that most of the poultry slaughtered would not be exported, nevertheless wanted to be in a position to export any bird which was at any time killed and dressed in the slaughter-house if the occasion to do so should arise. The acceptance of this argument would lead to the conclusion that reg. 50A had no valid application to any slaughtering taking place in the company's establishment, but I do not think that the matters relied upon, taken together, do show that all the slaughtering of poultry that took place in the slaughterhouse was slaughter for export or was slaughter of poultry "intended for export", to use the language of regs. 70-74 (j), which relate particularly to the slaughter of poultry. It was, I think, not only open to the magistrate to find as he did that some of the birds slaughtered on the day in question were not poultry intended for export, but that it is correct to say that what took place on that day was that there was slaughter of poultry for the purpose of the company's business which, in so far as poultry was concerned, consisted in the main of trade within Australia. I find no justification in the facts for treating the slaughter that took place as slaughter for export to the exclusion of slaughter for home consumption and it is worth observing that both the form of application for registration prescribed by the Commonwealth regulations (Form "A" of the First Schedule) and the certificate of registration actually given (exhibit 3) recognize that activities other than the slaughtering of animals and poultry for export and their subsequent treatment may take place upon the premises. Slaughter for home consumption seems to me one other activity that was contemplated. (at p220)
9. The conclusion that I have just stated does not, however, finally dispose of the question of inconsistency. Rather it brings me to what I regard as the crux of the matter. As has been shown, the Commonwealth regulations do deal exhaustively with the slaughtering of poultry for export so that reg. 50A cannot validly prohibit slaughtering for that purpose, but it is another question whether that regulation can nevertheless validly apply to slaughtering otherwise than for export in an establishment registered under the Commonwealth regulations and governed thereby. It is clear, of course, that reg. 50A is not wholly invalid because of its inconsistency with the Commonwealth regulations. When poultry is slaughtered in premises not licensed under reg. 50A, that regulation does unquestionably govern killing for home consumption. Its ordinary application would no doubt be to slaughtering for sale, but it seems possible that, notwithstanding the heading of Pt 3 of The Poultry Regulations, reg. 50A goes further and, even if stopping short of applying to the shooting of wild duck, would extend so far as to prevent the owner of a chicken killing it to give to his neighbours "not being members of the family" or even to eat with his family and visitors. It is also clear that it would be within the power of the Commonwealth to prohibit slaughtering for home consumption in premises registered for slaughtering for export - a course which has not been followed - or to regulate, in an establishment where slaughtering for export is carried on in the interests of overseas trade, operations not directly concerned with preparing goods for that trade. Of this sort of regulation, the regulations do provide examples (e.g. regs. 19, 25, 43, 50, 74 (f), 92 and 101). But notwithstanding regulations of this sort, I have come to think that the Commonwealth regulations do not purport to deal exhaustively with the slaughtering of poultry not for export in an establishment registered under those regulations as one in which the slaughtering of poultry for export can be effectively carried on and I find this conclusion reinforced by what was said in the Noarlunga Case (1954) 92 CLR 565; (1957) AC 1; (1956) 95 CLR 177 both by this Court and the Privy Council. What was emphasized was that the regulations exhaustively regulate and control the slaughtering of meat for export. To the citations I have already made from the judgment of Fullagar J., I merely add reference to pp. 596, 598, and I quote two passages from the opinion of the Privy Council: "If the State code dealing with slaughtering generally covered any specific matters dealt with in the regulations, the latter would no doubt oust and supersede the former quoad slaughter for export" (1957) AC, at p 29; (1956) 95 CLR, at p 187 and "Special conditions for slaughtering for export are precisely the field which in their Lordships' opinion the regulations evince an intention exhaustively to cover" (1957) AC, at p 29; (1956) 95 CLR, at p 187 . The Commonwealth regulations, therefore, leave room for a State regulation which forbids slaughtering for home consumption in unlicensed premises even if they are premises registered under the Commonwealth regulations and, because reg. 50A is invalid in so far as it prohibits slaughtering for export but no further. I think it must be regarded as doing no more than prohibiting slaughter for home consumption in unlicensed premises. To that extent I regard it as valid. The Commonwealth regulations may perhaps be regarded as authorizing slaughter for export upon registered premises, but they cannot be regarded as positively authorizing slaughter for home consumption upon registered premises - at most, it is recognized that slaughter for home consumption may take place upon such premises and that to the extent to which it does it is regulated by some general provisions of the regulations which would override any inconsistent State regulations. The Commonwealth regulations are a code for the preparation of meat for export but it is not their meaning that all that is to be said about slaughtering for home consumption in registered establishments has been said. To take a simple instance, I would regard State legislation prohibiting the slaughter of swans for home consumption without the approval of a State inspector as validly applying to slaughtering in establishments registered under the Commonwealth regulations. (at p222)
10. I consider, therefore, that although an unspecified number of birds that were slaughtered in the company's Maryborough premises on 15th September 1960 may have been slaughtered for export so that the slaughter of those birds was not in contravention of reg. 50A, an unspecified number of the birds then and there slaughtered were slaughtered for home consumption and this circumstance justified the company's conviction upon the charge that on that day and in that place it slaughtered poultry in unlicensed premises contrary to The Poultry Regulations. (at p222)
11. Like reasoning has brought me to the conclusion that there is no inconsistency between the Commonwealth regulations and reg. 53 of The Slaughtering Regulations. If reg. 53 has no application to the breaking up of carcasses for export, as has been assumed, then there would be no inconsistency between it and the Commonwealth regulations; but if, according to its terms, it has such an application, then the most that s. 109 of the Constitution would do would be to invalidate its application to meat so treated, leaving it to apply validly to meat broken up for home consumption, which is all with which we are concerned here. The appeal to s. 109 of the Constitution therefore fails with respect to this conviction as well as the other. (at p222)
12. The contention that the fees imposed by reg. 53 of The Slaughtering Regulations are duties of excise remains to be considered, and I have come to the conclusion that this contention is correct. (at p222)
13. It is not necessary here to determine how far State charges which would otherwise fall within the description of duties of customs or duties of excise can be justified as inspection fees because the fees with which we are concerned are payable "for the purpose of defraying the expenses of inspection of meat for sale and of carrying this Act into effect". (at p222)
14. Rejecting the contention that the fee is no more than an inspection fee, what remains is a compulsory exaction for public purposes upon the occupier of premises where meat is prepared for sale which is conditional upon the taking of a step in the process of putting meat in the form in which it will be sold for consumption (i.e. the breaking up of carcasses) and calculated upon the weight of the broken up meat. I cannot regard this as other than a tax upon the production of goods for sale and, if it be important, an indirect tax upon such production, for it is likely to be passed on to the consumer in one way or another. Such fees are quite different from the licence fees that were held not to be duties of excise in Dennis Hotels Pty. Ltd. v. Victoria [1960] HCA 10; (1960) 104 CLR 529 and in Browns Transport Pty. Ltd. v. Kropp [1958] HCA 49; (1958) 100 CLR 117 . Here the fee is imposed in relation to the production of goods. (at p223)
15. In my judgment, therefore, the appeal against the company's conviction for a contravention of the Poultry Regulations should be dismissed, and its appeal against conviction for contravention of the Slaughtering Regulations should be allowed. (at p223)
WINDEYER J.(No. 18 of 1961.)
2. If a visitor to the appellant's premises at Maryborough had asked, "Is this poultry being killed for export?", the correct answer could not have been "No": it would have been "Some of it will be exported". If the question had been, "Is this poultry being killed for human consumption?", the correct answer could not have been "No": it must have been "Yes". If then the question had been, "Is it to be consumed in Australia?", the answer must have been "Some, probably most, of it will be". (at p223)
3. Because poultry was being there slaughtered for export, the premises had to be registered under the Commonwealth regulations. But that does not prevent them being licensed also according to the State law. It was not said that a licence under the State Act could not have been had for the premises, or that the need to obtain a licence would impede in any way the operation of the Commonwealth law. There are, it is true, provisions of the State law concerning the conduct of the operations upon the premises which could come into collision with Commonwealth law governing the same matters. But those provisions are not in question here. State law (reg. 50A) prescribes that, with one exception, poultry intended for human consumption is not to be killed at any other place than a licensed slaughter-house. And a slaughter-house is defined as any place kept or used for the slaughtering of poultry for human consumption. This regulation is not of itself inconsistent with the Commonwealth law that some slaughter-houses in Queensland must be registered under Commonwealth law and come under the control of the Commonwealth. (at p224)
4. Some of the birds killed upon the appellant's premises would in the
ordinary course be exported. All, it seems, were so dealt
with as to satisfy
Commonwealth export requirements. And the premises were registered in
accordance with the Commonwealth regulations.
But that did not mean that they
had thereby become a kind of Commonwealth enclave about which State law could
say nothing. In so
far as Commonwealth and State requirements concerning the
physical character of the premises and the actual conduct of slaughtering
there are conflicting, any difficulty could it seems be overcome by sensible
co-operation between the Commonwealth and State and
the inconsistencies
removed by appropriate amendments. But, however that may be, no conflict is
involved in this case. I would dismiss
the appeal. (at p224)
(No. 19 of 1961.)
5. I agree in the judgment of the Chief Justice. I consider the imposts in question were duties of excise and that the appeal should therefore be allowed. (at p224)
OWEN J.(Nos. 18 and 19 of 1961.)
2. Dealing now with the second appeal, the appellant was convicted of a breach of reg. 53 of The Slaughtering Regulations made under the Queensland Slaughtering Acts in that it had failed to pay the fees imposed by that regulation "for the purpose of defraying the expenses of inspection of meat for sale and of carrying this Act into effect". The fees in question were claimed to be payable in respect of meat which was boned and canned by the appellant in premises occupied by it. The evidence showed that some of the meat so treated would probably be exported and some would probably go into consumption in Australia. The premises were described in the complaint as a "butcher's shop" but were not a butcher's shop in the ordinary meaning of the term, that is to say they were not used for the purpose of retailing meat to the public. They were used for the boning and canning of meat for later sale overseas or locally. The Queensland Slaughtering Acts, however, by s. 6 define a "butcher's shop" as including any building "kept or used for the preparation for sale of meat" and it was not questioned that the premises occupied by the appellant, which were registered under the Commonwealth Commerce (Meat Export) Regulations and also licensed under the Queensland Slaughtering Acts, would come within the definition. The first question to be considered is similar to that which arose in the first case, namely whether there is an inconsistency between reg. 53 of The Slaughtering Regulations and the provisions of the Commonwealth Commerce (Meat Export) Regulations and, if so, the extent to which s. 109 of the Constitution invalidates reg. 53. The Slaughtering Acts and the regulations made thereunder are designed to regulate and control the slaughtering of stock for human consumption and for this purpose to provide, inter alia, a system of inspection and supervision of the slaughtering and treatment of meat in slaughterhouses and other premises including butchers' shops. Since the premises occupied by the appellant were used by it both for the purpose of preparing meat for export and for the purpose of preparing meat for home consumption and were not used solely for the latter purpose, I am of opinion, for the reasons I have given in connexion with the first case, that the Commonwealth regulations are applicable to the establishment to the exclusion of The Slaughtering Acts and the regulations made thereunder and that to that extent the latter are invalidated by s. 109. Regulation 53 is inextricably bound up with the other Queensland regulations which regulate and control the preparation of meat for home consumption and can therefore have no application to an establishment to which the Commonwealth regulations apply. On this ground the conviction should be set aside and it is unnecessary to consider a further submission that reg. 53 imposes duties of excise and is for that reason invalid. (at p229)
ORDER
Appeal dismissed with costs.(No. 19 of 1961.)
Appeal allowed with costs. Order of the Magistrate set aside. Complaint dismissed with thirty guineas costs.
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