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High Court of Australia |
J. BERNARD & CO. PTY. LTD. v. LANGLEY [1980] HCA 39; (1980) 153 CLR 650
Constitutional Law (Cth)
High Court of Australia
Gibbs A.C.J.(1), Stephen(2), Mason(3), Murphy(4), Aickin(5) and Wilson (6) JJ.
CATCHWORDS
Constitutional Law (Cth) - Freedom of interstate trade and commerce - Statutory control of meat industry in New South Wales - Inspection of meat imported from another State - Power of seizure - Whether regulatory - Whether scheme reasonably necessary to secure public health - The Constitution (63 & 64 Vict. c. 12), ss. 92, 112 - Meat Industry Act 1978 (N.S.W.), ss. 29, 43 - Meat Inspection and Stamping Regulations 1978 (N.S.W.), regs. 14, 15.
HEARING
Canberra, 1980, August 5; October 28. 28:10:1980DECISION
October 28. The following written judgments were delivered: -
2. Under Pt II of the Act provision is made for the issue by the Authority of
licences of various kinds, including abattoir licences, slaughter-house
licences and meat van licences (s. 10). An application for a licence shall be
refused if, inter alia, the premises or vehicle in respect of which the
licence is sought do
not comply with the prescribed minimum standards (s.
11(4)). Part III of the Act, which is headed "Inspections and Regulation of
the Meat Industry" contains the provisions with which we are mostly concerned.
By s. 20(1) a meat inspector is given power, inter alia, to inspect any
licensed premises or licensed vehicle and any meat therein
or thereon. This
power is extended by s. 20(2) which provides as follows:
"Where a meat inspector suspects on reasonable grounds that there is in
or on any unlicensed premises or unlicensed vehicle
any meat . . . that is
. . . intended for sale, he may perform his functions under this Act in
relation to the premises or
vehicle and the meat . . . as if the premises
or vehicle were licensed premises or a licensed vehicle."
By s. 21(1), a meat inspector may, at any abattoir or slaughterhouse, give
such directions as he thinks proper with respect to the
slaughtering
procedures at the abattoir or slaughter-house, including directions for the
hygienic and humane management and operation
of the abattoir or
slaughter-house. The combined effect of the various sub-sections of s. 22 is
that a meat inspector shall inspect
the carcase of any animal slaughtered at
an abattoir or slaughter-house, and shall, if he is satisfied that the carcase
or any part
of the carcase is fit for human consumption, pass the carcase or
part of the carcase as fit for human consumption. If a meat inspector
suspects
on reasonable grounds that (inter alia) any meat on licensed premises or a
licensed vehicle is unfit for human consumption,
he may require it to be
submitted for inspection, notwithstanding that it has been previously
inspected (s. 25). Under s. 26, a meat
inspector may, inter alia, condemn, as
unfit for human consumption (inter alia) any meat in or on any licensed
premises or vehicle,
and may seize the meat condemned and cause it to be
destroyed or otherwise disposed of. Anything so seized "shall become the
absolute
property of the Crown, and the Minister may, if he thinks fit, pay to
the owner thereof such amount in respect thereof as he may
determine" (s.
26(5)). On behalf of the plaintiff it was submitted that the effect of s.
20(2) is that a meat inspector may condemn
meat which is in or on any premises
or vehicle, whether licensed or not, provided that the inspector suspects on
reasonable grounds
that the meat is intended for sale, and this appears to be
correct, although it is unnecessary to decide the point. Sub-sections
(1), (2)
and (3) of s. 29, so far as they are material, provide as follows:
"(1) Where a meat inspector -
(a) finds that meat . . . has been or is being dealt with contrary to
this Act; or
(b) reasonably suspects that meat . . . has been or is being so dealt
with,
he may seize the meat . . . and deal with it in the prescribed manner.
(2) Where, within 7 days after the seizure, a person claiming the meat .
. . -
(a) complaints of the seizure to a justice of the peace; and
(b) lodges with the Authority notice in writing containing the
prescribed particulars of his complaint,
the complaint shall be heard and determined by any stipendiary magistrate
who may either confirm or disallow the seizure
and may -
(c) where he disallows the seizure but is of the opinion that the
condition of the meat . . . requires that it be destroyed,
order that it
be destroyed and make such order as to compensation as he thinks fit; and
(d) whether he confirms or disallows the seizure, make such order as to
costs as he thinks fit.
(3) If -
(a) no complaint is made under subsection (2) within the period of 7
days specified in that subsection;
(b) a complaint is so made but the notice referred to in subsection
(2)(b) is not lodged with the Authority within that
period; or
(c) the seizure is confirmed under subsection (2),
the meat . . . becomes the property of the Authority and may be dealt with
as the Authority thinks fit."
"A person shall not sell meat for human consumption . . . unless -Section 43(1) provides as follows:
(a) the animal from which it came was slaughtered at an abattoir or slaughter-house; or
(b) it or the carcase from which it came was brought into the State in accordance with section 43(1),
and the meat or the carcase from which it came has been inspected by a meat inspector and passed by him as fit for human consumption."
submitted for inspection by an inspector.Regulation 15 of the Regulations imposes an additional requirement; it provides as follows:
(5) The reference in subsection (4) to an approved inspection placed is, in relation to any person, a reference to an inspection place approved in writing by the Director-General in respect of that person or to a place declared by the Director-General, by order published in the Gazette, to be an approved inspection place for the purpose of this subsection."
3. It is clear that the sale of the meat by the plaintiff in Victoria to the buyer in New South Wales, pursuant to a contract which contained as express stipulation that the goods be sent from Victoria to New South Wales, was of an interstate character. And of course the movement of the meat from the one State to the other was an act of interstate trade or commerce. It is equally clear that the provisions of the Act and Regulations would, if applicable, impose a restriction on the plaintiff's interstate trade that would be direct and immediate in its operation. Such a restriction would impair the freedom whose existence is declared by s. 92 of the Constitution, unless the legislation can be said to be no more than regulatory. The question in the case is whether the challenged provisions can be upheld as no more than regulatory. In answering the question it is necessary to consider the precise nature of the restriction which the legislation imposes. Section 29 by itself does not have any operation on interstate trade. It provides a consequence if meat has been, or is suspected to have been, dealt with contrary to the Act. The provisions which impose the direct burden are those of s. 43(1) and reg. 15. The effect of those provisions is that a person may not lawfully bring abattoir meat into New South Wales for human consumption unless (1) the animal from which the meat came was slaughtered on premises approved by the Authority; (2) the meat was inspected in the manner prescribed by reg. 14(1); (3) the meat is accompanied by a certificate in the prescribed form signed by the person who conducted that inspection; (4) the meat is forthwith taken to an approved inspection place and there submitted for inspection by a meat inspector; and (5) twenty-four hours' notice of intention to bring the meat into New South Wales has been given to a meat inspector at the approved inspection place. (at p657)
4. It is a question of fact whether, in any particular case, there is an infringement of the freedom recognized by s. 92. In the present case, as appears from the account of the statement of claim given above, no facts have been pleaded which would show how the provisions now attacked would affect the interstate trade of the plaintiff. For example, it was not alleged that the premises approved by the Authority, at which meat may be slaughtered outside New South Wales, or the approved inspection places to which meat is to be taken when brought within New South Wales, were so few, or so inconveniently situated, as to create difficulty for the plaintiff when, in the course of its interstate trade, it wished to bring meat into New South Wales. Nothing was pleaded to suggest that the manner of inspection prescribed by reg. 14(1), or the circumstances in which the, certificate of inspection is given, or the necessity to give twenty-four hours notice, in fact created burdens which the words of the provisions themselves would not suggest exist. There was of course no evidence directed to any of these matters. Accordingly, to use the words of Dixon, McTiernan and Fullagar JJ. in Wilcox Mofflin Ltd. v. New South Wales (1952) 85 CLR 488, at p 507 , the plaintiff has not put before the Court material that would enable it to understand "the real significance, effect and operation of the statutes" and has confined its case to "dialectical arguments and considerations appearing on the face of the legislation". (at p658)
5. In this situation, the plaintiff cannot successfully argue that the provisions of s. 43(1) which require the animal which produced the meat to have been slaughtered on premises which had been approved by the Authority, or those of s. 43(4) which require the meat to be taken to an approved inspection place, have no valid application to interstate trade. Although the discretions given by those sub-sections to the Authority and the Director-General respectively are to be exercised for the purposes of the Act, they do appear to be wide enough to permit approvals to be given or withheld in such a manner as to impose an impermissible burden on interstate trade. However, it does not appear that they have been exercised, or that there is any threat to exercise them, in that way. A successful challenge to legislation under s. 92 cannot be based on hypothetical facts or mere possibilities. The possibility that the powers conferred by s. 43 might be exercised in such a way as to impose an impermissible burden on the interstate trade of the plaintiff does not mean that s. 43 is itself invalid. A similar question was recently discussed in Buck v. Bavone [1976] HCA 24; (1976) 135 CLR 110, at pp 119, 125-130 , where some of the relevant authorities are cited. (at p658)
6. On behalf of the plaintiff it was submitted that ss. 29 and 43 of the Act and regs. 14 and 15 of the Regulations, considered in conjunction, go beyond reasonable regulation. Counsel particularly relied on the contrast provided by s. 26 on the one hand and the challenged provisions on the other. He said that s. 26, when read in the light of s. 20(2) and of s. 74 (which contains provisions facilitating proof), does all that is necessary to ensure, in the public interest, that meat intended for human consumption is in fact fit for human consumption. On the other hand, he submitted, s. 29 provides remedies for breaches of the Act generally, and when read together with s. 43 and regs. 14 and 15 imposes a heavy burden on interstate traders in meat and not on other traders. He pointed to the fact that when contaminated meat is seized under s. 26 the owner may be paid compensation (although it is clear from s. 26(5) that any such payment lies in the discretion of the Minister) whereas if meat is seized under s. 29 no compensation is payable. He submitted that the drastic consequences which s. 29 provides for a breach of s. 43 or of reg. 14 or reg. 15 assists the conclusion that those provisions go beyond reasonable regulation. Finally, it was pointed out that s. 43(4) applies when any meat is brought into the State, even if the meat has come from an animal slaughtered within the State. (at p659)
7. Before dealing with those particular criticisms of the legislation, it is convenient to consider its general character. The provisions of s. 42 strike at an essential feature of an interstate transaction - the bringing of meat over the border into the State. However, those provisions do not prohibit such transactions; they prescribe rules according to which trade of that kind should be conducted. Moreover, although s. 43, unlike s. 26, does not expressly refer to meat which is unfit for human consumption, it can be inferred that its provisions are enacted for the purpose of ensuring the maintenance of proper standards in the interest of public health. Meat is of course a commodity which is susceptible to contamination and prone to deterioration. To require that meat intended for human consumption shall come from an animal which has been slaughtered under hygienic conditions, and that the meat itself shall be fit for human consumption, is to do no more than regulate, in a reasonable way, the manner in which persons engaging in the meat trade shall carry out their activities. On the facts as pleaded it is impossible to conclude that s. 43(1) has any wider operation than this. Regulation 14, which prescribes the manner of inspection and the form of the certificate for the purposes of s. 43(1), reveals throughout its provisions a concern with hygiene and health. The application of sub-s. (4) of s. 43 is not restricted to meat intended for human consumption, since the Act generally deals also with meat intended for use as animal food, but in its operation in relation to meat intended for human consumption sub-s. (4) provides a means of ensuring that the meat can be checked for fitness and quality by an agency of the State in which it is likely to be used. Regulation 15 appears designed to enable the provisions of s. 43(4) to be made effective, by giving warning of the intended movement of the meat and by enabling arrangements to be made for its inspection. Nothing is pleaded to suggest that the necessity to give twenty-four hours' notice renders interstate trade in meat practically impossible or unreasonably burdensome. Subject to the particular criticisms advanced on behalf of the plaintiff, to which it is now necessary to return, it is clear that those provisions are regulatory in character within the principles recently discussed in Permewan Wright Consolidated Pty. Ltd. v. Trewhitt [1979] HCA 58; (1979) 145 CLR 1 , and do not detract from the freedom guaranteed by s. 92. (at p660)
8. The fact that s. 26 provides one way of regulating the trade in meat in the interests of the public does not mean that it is unreasonable to adopt other means in addition. It is well within the range of a reasonable discretion to consider that for the proper protection of the public it is not enough to condemn unfit meat where it is found, but that it is desirable in addition to take steps to ensure that the animals producing the meat were free from disease and that they were slaughtered under sanitary conditions. These objects are sought to be attained, where the animal is slaughtered in New South Wales, by the provisions of s. 22 of the Act, and, where the meat is brought into New South Wales, by the provisions of s. 43(1). It was said that s. 43(4) has the effect that meat brought into the State must undergo an inspection which is not required in the case of meat slaughtered in New South Wales and not moved interstate. Under s. 25 of the Act, meat from an animal slaughtered in New South Wales may be inspected again, notwithstanding that it had undergone an earlier inspection at the abattoir, but it will not necessarily receive this additional inspection, whereas s. 43(4) requires that meat brought into the State must be inspected. It cannot however be said to be outside the bounds of a reasonable discretion to require meat brought into the State to be inspected by an officer of the State, notwithstanding that it has already been inspected outside the State, at least when it has not been shown that this system of double inspection will be deleterious to the meat. By requiring this inspection the provisions of s. 43(4) do not discriminate against interstate trade in meat; they achieve the result that all meat sold within the State, whatever its origin, is inspected by officers of the State. As to the argument that s. 43 may apply to meat which has been slaughtered in New South Wales and taken from and returned to that State, it is enough to say that the present has not been shown to be a case of that kind, but in any event it is not shown to be unreasonable to inspect all meat coming into the State, and to make no exception in favour of meat that originated in the State but was taken outside it, particularly since to admit such an exception might well make it more difficult to enforce the provisions of s. 43(4). Finally, the fact that s. 29 may possibly have the result that meat may be seized and forfeited for what might be a comparatively venial breach of the Act does not mean that the provisions of the Act and Regulations which affect the plaintiff's interstate trade cannot be described as regulatory. As has already been pointed out, s. 29 does not itself affect interstate trade; it provides a sanction for the observance of other provisions of the Act and Regulations, and any burden on that trade has its source in those other provisions, namely in s. 43 and regs. 14 and 15. For the reasons given, those provisions prescribe rules for the proper conduct of the trade in meat which are reasonable and appropriate for the protection of the public interest, and which do not discriminate against interstate trade, and which accordingly are not repugnant to s. 92. (at p661)
9. The demurrer should be allowed. (at p661)
STEPHEN J. I agree that the demurrer should be allowed for the reasons stated by Gibbs A.C.J. (at p661)
MASON J. I would allow the demurrer, for the reasons given by Gibbs A.C.J. (at p661)
MURPHY J. The plaintiff company, a meat wholesaler which is engaged in trade and commerce among the States, claims that ss. 29 and 43 of the Meat Industry Act 1978 (N.S.W.), as amended, are either invalid or inapplicable to its trade because of s. 92 of the Constitution. The plaintiff claims consequential relief from the New South Wales Meat Industry Authority's seizure of its meat and refusal to return it. (at p661)
2. Section 92 of the Constitution is not applicable. The two sections of the Meat Industry Act do not involve any customs duty or discriminatory fiscal impost on the plaintiff's trade. For this reason, the demurrer to the plaintiff's statement of claim should be upheld. I have stated my reasons for this view in Buck v. Bavone [1976] HCA 24; (1976) 135 CLR 110 and later cases. Because of this, it is not necessary to determine whether the provisions of the Act are regulatory. However, it is clear that the plaintiff has not made out a case that the challenged provisions are other than regulatory. The defendants' demurrer should be upheld. (at p661)
AICKIN J. This case comes before the Court on a demurrer to the plaintiff's statement of claim, the contents of which are stated in the reasons for judgment of Gibbs A.C.J. His judgment also set out the relevant sections of the Meat Industry Act 1978 (N.S.W.) and the relevant regulations made under that Act. (at p662)
2. But for one matter I would regard this case as governed by that part of
the decision in Wilcox Mofflin Ltd. v. New South Wales
[1952] HCA 17; (1952) 85 CLR 488 which
upheld the provisions of a marketing scheme which required hides to be
submitted for appraisement
by persons
appointed by a Board constituted under a
Commonwealth Act, which together with State Acts established a marketing
scheme
which dealt
both with overseas sales and sales in Australia: see the
joint judgment of Dixon, McTiernan and Fullagar JJ. Their Honours
said (1952)
85 CLR, at p 507 :
"Unfortunately the parties did not enter into formal or full proof of
these and other matters which would have enabled
us, at all events, to
obtain an under-standing which we felt more adequate of the real
significance, effect and operation
of the statutes, information of a kind
that we have come to think almost indispensable to a satisfactory solution
of many
of the constitutional problems brought to this Court for decision;
though we are bound to say that it is not an opinion commanding
much
respect among the parties to issues of constitutional validity, not even
those interested to support legislation, who,
strange as it seems to us,
usually prefer to submit such an issue in the abstract without providing
any background of information
in aid of the presumption of validity and to
confine their cases to dialectical arguments and considerations appearing
on
the face of the legislation. But from what appears in evidence, from
the inferences to be drawn from the regulations and statutes
themselves,
from the statements made at the bar and from general knowledge and
experience of Australian affairs, some picture
of the industry can be
constructed." (at p662)
3. The joint judgment pointed out that the plaintiffs had not sought to prove
that any actual interstate transaction had been prevented
or defeated and
concluded that in the circumstances it had not been established that the
legislation had involved any real interference
with the freedom of interstate
commerce in hides. (at p662)
4. In the present case the statement of claim does not disclose how the legislation operates. There is no allegation as to the number (if any) of premises in Victoria which have been approved or as to their location. It is not alleged that approved premises are at places so located as to make movement into New South Wales difficult or impractical. There is no allegation as to the time occupied by inspection in Victoria or in New South Wales or as to the significance (if any) of the amount of the fees charged under the regulations. (at p663)
5. If all that the legislation required was inspection at approved premises in Victoria by inspectors authorized under Victorian law, the plaintiff would simply have failed to allege any facts which showed any interference with its interstate commercial dealings. The addition of the requirement that the meat should be accompanied by certificates showing compliance with those requirements (reg. 14) would not present any conflict with s. 92 of the Constitution. (at p663)
6. There is however a further factor which may be of importance in relation to s. 92. The legislation requires that meat imported into New South Wales from another State shall be inspected not only at an approved place in its State of origin by a meat inspector appointed under legislation in that State of origin (s. 43(1) and reg. 14(1)(b)) and in a manner approved by the chief meat inspector of New South Wales (reg. 14(1)(c)), but also again after its entry into New South Wales at an approved inspection place by a New South Wales meat inspector: see s. 41(1)(b) which covers the sale of imported meat and s. 43(4) which probably refers only to one inspection in New South Wales. Regulation 15 requires that not less than twenty-four hours' notice in the prescribed form must be given of the intention to bring meat into New South Wales to a meat inspector at the approved place of inspection to which the meat is intended to be delivered in accordance with s. 43(4). In the case of meat from animals slaughtered in New South Wales that legislation requires that it must be inspected at a licensed abattoir or slaughterhouse by an approved inspector (s. 22(2) and (3) and s. 41(1)(a)). (at p663)
7. It is true that under s. 25 a meat inspector may in the circumstances there set out require New South Wales meat to be subjected to additional inspections but the same section applies also to meat brought into New South Wales from another State. (at p663)
8. It was argued for the defendant that s. 43 and the regulations thereunder
were properly characterized as inspection laws and could not be attacked
because of s. 112 of the Constitution. That section is as follows:
"After uniform duties of customs have been imposed, a State may levy on
imports or exports, or on goods passing into or
out of the State, such
charges as may be necessary for executing the inspection laws of the
State; but the net produce of
all charges so levied shall be for the use
of the Commonwealth; and any such inspection laws may be annulled by the
Parliament
of the Commonwealth."
That section, like s. 113, expressly preserves to the States power to
legislate in a manner which would otherwise contravene s. 92 or, at least,
might do so. The section has been the subject of little comment and no
decision in this Court. (at p664)
9. It appears to have been first adverted to in Duncan v. Queensland [1916] HCA 67; (1916)
22 CLR 556 . In that case Higgins J.
said (1916) 22
CLR, at p 637 :
"As for the argument based by counsel on sec. 112 - that by assuming
inspection laws to be valid, and by expressly conferring the power to
impose inter-State inspection charges,
the Convention did not mean by sec.
92 to do more than forbid inter-State duties - I cannot accept it. It
seems to me to be a fundamental error to suppose that inspection
laws
necessarily connote any obstruction or restriction on inter-State
movement. They may obstruct or restrict, and therefore
the Federal
Parliament has power to annul them; but inspection laws can be of many
varieties; and in assuming that they may
be valid sec. 112 does not
exclude them from the operation of sec. 92, so far as they restrict
inter-State commerce."
Griffith C.J. (1916) 22 CLR, at p 573 and Isaacs J. (1916) 22 CLR, at p 618
expressed similar views: cf. Minnesota v. Barber [1890] USSC 192; (1889)
136 US 313 (34 Law Ed
455) . Barton J. (1916) 22 CLR, at p 588 also rejected the proposition that s.
92 was confined to the prevention
of fiscal burdens but expressed a different
opinion on the effect of s. 112. It would appear that he was not of the view
that State
inspection laws could in certain instances infringe s. 92 but in
this respect he was in the minority. (at p664)
10. Some later comments of Isaacs J., Starke J. and Dixon J. are also
instructive. In Ex parte Nelson (No. 1) [1928] HCA 33; (1928)
42 CLR 209,
at p 240 Isaacs J.
said:
"3. Inspection Laws. - It was urged that sec. 112, by expressly
permitting a State to levy, on 'goods passing into' that
State, charges
necessary for executing its 'inspection
laws,' by necessary implication
recognized the power of the State
to legislate so as to forbid the
introduction of goods
from other States. That implication, so far from
being necessary,
is impossible. The clause assumes the existence of what
are called 'inspection laws'. It assumes that the act of inspection costs
money, and that it is fair to make goods thought to
require inspection
bear the actual cost, and nothing more. If any surplus
exists, the
Commonwealth and not the State is to
receive it; and the Parliament may,
if it thinks fit, annul the inspection
laws. There is nothing to support,
and there is
very much to displace, the idea that the Constitution
intended by sec. 112 to give power to the State to exclude the goods
altogether in any case whatever. It does not say so, and in view of sec.
92 it would need to say so very distinctly. If 'inspection laws' are to be
taken to include power of exclusion, it must have that
meaning as to
'imports and exports' - that is, exclusion of imports from its own
territory and the retention of exports within
its own territory. That
would nullify sec. 52(II.) as to customs and excise when read with secs.
69 and 90. But the words 'imports and exports' imply that the goods are
lawfully
imported or exported, and the words 'goods passing into or out of
the State' imply that the goods lawfully pass into and out
of the State.
If the Commonwealth law forbade their introduction, sec. 112 would have no
application to them; the whole section as a necessary implication shows
that, except to the extent expressly
enunciated by some section of the
Constitution, the State has no power whatever over the acts of importation
into, exportation from, or the passing into or out of the State,
from or
into another State. Sec. 113 has the same implication."
In Tasmania v. Victoria [1935] HCA 4; (1935) 52 CLR 157, at p 176 Starke J. said:
"It was contended during the argument that sec. 112 of the Constitution
supports the view I have taken. It certainly recognizes the rights of the
States to pass inspection laws, and to make them
effective. But inspection
laws cannot be made a pretext for interference with the freedom of
inter-State trade, commerce
and intercourse. That would annihilate the
provisions of sec. 92."
and Dixon J. said (1935) 52 CLR, at pp 185-186 :
"It (i.e. s. 112) confers an express and special power upon the States
to levy charges for the execution of their inspection laws. The purpose
of
doing so is to enable the States to do what otherwise sec. 92 and,
perhaps, sec. 90 would or might prevent. It is true that it is expressed
in terms which imply that the power to make inspection laws is retained
by
the States. The precise limits of the expression 'inspection laws' may be
difficult to define. But, at least, such laws
are concerned with the
ascertainment of the actual state or condition of goods and if exclusion
from inter-State trade may
follow from the discovery of a noxious,
defective or undesirable condition that exclusion must result from the
execution
of the inspection law. Further, sec. 112 probably should be
understood as an express reservation of power to make an inspection law
which, otherwise, would be withdrawn
by sec. 92. By the express terms of
sec. 112, the power of the State to make inspection laws is placed under
the control of the Parliament of the Commonwealth, which may
annul them.
It is absurd to suppose that, although the power reserved to a State to
make inspection laws in reference to
goods passing into and out of the
State is so conditioned, it retains a power entirely uncontrolled to
forbid absolutely
the importation of a commodity from another State
because the State Executive expresses the opinion that a vegetable disease
may be introduced if importation is allowed." (at p666)
11. Thus the power to make "necessary" charges is preserved to the States. In that context I take that expression to mean necessary to recover the estimated cost of the inspection. It follows from the preservation of power to impose inspection charges that the States retain at least some power to require inspection of incoming goods. Accordingly s. 92 does not prohibit all requirements for inspection and the payment of charges therefor. Nevertheless it does not follow from the fact that a fee for inspection may lawfully be charged under an "inspection law" that all such laws necessarily fall outside the operation of s. 92. The passages which I have quoted above express that view and, with respect, it seems to me to be plainly correct. If the reasons of Barton J. can be read as expressing a different view, then he was in the minority and the majority view is in my opinion to be preferred and is consistent with the later cases. Accordingly the defendant's argument that the provisions in question are "inspection laws", if accepted, cannot be decisive because such laws may still contravene s. 92. (at p666)
12. An inspection law will generally be of a regulatory character and if "reasonable" will generally be valid. However such laws will not escape invalidation if they are discriminatory in their application to interstate trade. Thus if they treat interstate trade differently from intrastate trade and in a manner adverse to intrastate trade they will be contrary to s. 92. It was established as early as 1909 in Fox v. Robbins [1908] HCA 98; (1909) 8 CLR 115 that laws which discriminate against interstate trade are invalid and that has never been doubted. (at p666)
13. The plaintiff in his statement of claim has asserted that s. 29 is either void or inapplicable to the meat which it introduced into New South Wales by reason of s. 92 or alternatively that reg. 15 is contrary to s. 92 and therefore void. In addition to claiming declarations to that effect, the plaintiff has also claimed a declaration that s. 92 renders s. 43 void or inapplicable to the plaintiff's meat which has been seized. As to this claim it should be observed that on no view of the limited facts pleaded could it be maintained that all the provisions in s. 43 are invalid as infringing s. 92. Argument was restricted to the validity of s. 43(1) and (4) together with reg. 15. (at p666)
14. On the view which I take of this legislation, it is clear that s. 29 of itself applies indiscriminately to all meat and is a reasonable regulation of trade in meat generally. As a consequence it is not rendered void by the constitutional prohibition. Furthermore, while s. 43(1) taken together with reg. 14 might be said to impose a restriction on interstate trade in meat it would, if taken alone, be regulatory in character and no more than is reasonably necessary to ensure that interstate meat does not endanger the health of New South Wales consumers. The same however cannot be said of the requirement of an additional inspection prescribed by s. 43(4) once properly inspected interstate meat is brought into New South Wales. Such an additional inspection is not governed by the distance the meat has travelled, the means of transport (e.g. whether refrigerated or otherwise), by the time which has elapsed since slaughter or by like considerations. Regulations of that character would generally not contravene s. 92: cf. Cantarella v. Egg Marketing Board (N.S.W.) [1972] HCA 16; (1972) 124 CLR 605 . (at p667)
15. If the requirements for inspection at approved premises in Victoria and certification as to such inspection stood alone there would be no doubt as to their validity: cf. North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of New South Wales [1975] HCA 45; (1975) 134 CLR 559 . The requirement of a further inspection in circumstances not required for New South Wales meat is in my opinion invalid. I am unable to agree that the fact that the legislation requires a minimum of one inspection in New South Wales for New South Wales meat and for meat brought into New South Wales from another State demonstrates lack of discrimination. There is nothing in the North Eastern Dairy Case which suggests that such a provision would be valid. (at p667)
16. Regulation 15 presents a somewhat different problem. I consider that in a scheme of legislation of this character a simple requirement of twenty-four hours' notice of an intention to move meat from an approved slaughter-house in another State into New South Wales might well be compatible with s. 92. However this regulation is inextricably bound up with the requirement for an additional inspection in New South Wales which I regard as discriminating against interstate trade and commerce. I do not see how reg. 15 could be "read down" pursuant to s. 14A of the Interpretation Act 1897 (N.S.W.) so as to confine its operation within valid limits even if that section could be read as applicable to regulations. It is accordingly invalid. (at p667)
17. I can see no escape from the conclusion that s. 41(1)(b) and s. 43(1) and (4) and regs. 14 and 15 when read together discriminate in their operation against meat brought into New South Wales from another State. (at p667)
18. In the result I would overrule the demurrer in so far as the statement of claim relates to s. 43(4) and reg. 15. Save as aforesaid I would uphold the demurrer. (at p667)
WILSON J. I would allow the demurrer, for the reasons given by Gibbs A.C.J. (at p668)
ORDER
Demurrer allowed with costs.
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