Ackroyd v McKechnie

(d) Is s. 64(3), when read together with s. 14(1)(g) of the Act, invalid in so far as it would operate to give a fauna officer power to seize and detain fauna the subject of trade, commerce and intercourse between the States?

(e) Is s. 64(3), when read together with s. 14(1)(g) of the Act, invalid in so far as it would operate to give a fauna officer power to seize and detain fauna sent or brought into the State of Queensland in the course of interstate trade?

Order that the defendants pay the plaintiff's costs of these proceedings to be taxed.

This stated case raises for decision the effect of s. 92 of the Constitution on s. 64 of the Fauna Conservation Act 1974 Q, as amended and in force on 23 February 1984 ("the Act"). Section 64 provides as follows:

(1) The Under Secretary, Conservator or other officer authorized by either of them in that behalf may, upon application and upon being satisfied that authority for the exportation of the fauna from the State or Territory of the Commonwealth, or country, if required, has been obtained, grant and issue a permit in writing to any person authorizing him to send or bring into the State of Queensland fauna of any kind.

(2) A permit granted and issued under subsection (1) shall contain such particulars and be subject to such terms, conditions or restrictions as are prescribed or so far as not prescribed as the Under Secretary or Conservator thinks fit.

(3) A person who, save in accordance with a permit under this section, at any time sends or brings, attempts to send or bring or permits to be sent or brought into the State of Queensland from outside that State fauna of any kind is guilty of an offence.

Penalty: $10,000 or imprisonment for two years or both such imprisonment and such fine.

The word "fauna" is defined in s. 5 of the Act; for present purposes it is enough to say that it includes a mammal or bird. By the same section: "bird" means a bird wild by nature whether native to a State or Territory of the Commonwealth, migratory or introduced, in captivity, bred in captivity or tamed: the term includes in relation to such a bird -

" "Carcass" includes, in relation to fauna, the skin or feathers or other part of the carcass." The Act, by s. 6, classifies fauna into four classes - permanently protected fauna; protected fauna; non-protected fauna and prohibited fauna. Section 64 in terms is applicable to fauna of all of these classes.

The facts of the case were agreed upon by the parties or found by Dowsett J. of the Supreme Court of Queensland pursuant to issues directed to be determined by that Court by order of this Court. The plaintiff was a fauna dealer licensed pursuant to the National Parks and Wildlife Act 1974 NSW, as amended, and carried on business at Bankstown in New South Wales. Since 1980 the plaintiff, in the course of his business, has purchased thousands of native birds annually; about 25 per cent of those birds have been purchased outside New South Wales and about 25 per cent of all birds purchased by the plaintiff have been sold outside New South Wales. In about January or February 1984 the plaintiff at Bankstown had a number of telephone conversations with a Mr. Holman in Queensland. Mr. Holman offered to buy from the plaintiff sulphur-crested cockatoos up to a specified number and on or about 23 February 1984 the plaintiff accepted that offer by appropriating seventy birds in New South Wales to the contract, notifying Mr. Holman and dispatching the birds. It was a term of the contract of sale that the plaintiff send the birds to Mr. Holman in Queensland. On or about 23 February 1984 the plaintiff consigned the birds from Bankstown railway station in New South Wales to Mr. Holman at South Brisbane railway station in Queensland. The birds were conveyed from Bankstown to South Brisbane by rail accordingly. The plaintiff had arranged that a railway officer in Queensland would contact Mr. Holman by telephone upon the arrival of the birds at South Brisbane railway station. However on 24 February 1984 a fauna officer seized the birds at the South Brisbane railway station, in intended exercise of the power given by s. 14(1)(g) of the Act, which (inter alia) empowers such an officer to seize fauna if he suspects on reasonable grounds that an offence against the Act had been or is being committed. The plaintiff did not hold a current permit issued in accordance with s. 64 of the Act to send the birds into the State and Mr. Holman did not have a permit to bring the birds into the State.

The acts of the plaintiff which the fauna officer suspected constituted offences against the Act were acts of interstate trade or commerce. The suspected offences consisted in the sending of the fauna from New South Wales into Queensland otherwise than in accordance with a permit under s. 64. The actual movement of goods from State to State is at the very heart of interstate trade and commerce. Further, if it matters, the agreement between the plaintiff and Mr. Holman was also an interstate transaction. The fact that the agreement contained a term that the plaintiff should send the birds (which were in New South Wales) to Queensland brought the transaction within the fourth class of transactions discussed in W. & A. McArthur Ltd. v Queensland [1] ; see also J. Bernard & Co. Pty. Ltd. v Langley [2] . Indeed the agreement for sale which, if carried out, necessarily resulted in the interstate movement of birds was an essential and integral step in an interstate transaction and was itself entitled to the protection given by s. 92: see Australian Coarse Grains Pool Pty. Ltd. v Barley Marketing Board [No. 2] [3] .

1. (1920) 28 C.L.R. 530, at pp. 540, 559-560. 2. (1980) 153 C.L.R. 650, at p. 657. 3. (1985) 157 C.L.R. 605, at pp. 616, 629, 642-643, 665-666.

It is immaterial that wild birds were the subject of the transaction - there is no legal reason whatever why there should not be trade or commerce in wild birds or animals. At one stage of the argument it was suggested that sulphur-crested cockatoos were protected under the National Parks and Wildlife Act with the consequence that it was unlawful for the plaintiff to sell them and that for this reason they should be regarded as extra commercium. However further examination revealed that such cockatoos were not protected in New South Wales at the relevant time and this argument was abandoned.

It is clear that s. 64 cannot validly apply to the movement of fauna into Queensland in the course of interstate trade, unless its provisions can be regarded as merely regulatory. The section forbids the bringing of the birds into Queensland from another State without a permit, and entrusts to the officers authorized to grant a permit a discretion, apparently unfettered, to grant or refuse it. Not only does the section grant a discretion to refuse a permit without assigning any reason for the refusal, but it provides, by sub-s. (2), that a permit, when granted, shall "be subject to such terms, conditions or restrictions as are prescribed or so far as not prescribed as the Under Secretary or Conservator thinks fit". The conditions prescribed by the regulations seem unobjectionable (see regs. 26-28 of the Fauna Conservation Regulations 1974 (Q.)) but they do not limit the power of the Under Secretary or Conservator to impose further conditions. It is perhaps unnecessary to add that by s. 76 of the Act the Minister is given a wide power, during the currency of a permit, to revoke it. The direct result of these provisions is to restrict the freedom of trade, commerce and intercourse between the States. It is true that officials are given the power to grant a permit which will exempt the grantee from the operation of the provisions of the section but since the decisions in Hughes and Vale Pty. Ltd. v New South Wales [4] and Hughes and Vale Pty. Ltd. v New South Wales [No. 2] [5] it has been settled that a statutory provision which restricts or burdens trade unless a licence or permit is granted, and which gives the licensing or permitting authority an uncontrolled discretion to refuse to grant the licence or permit, cannot validly apply to interstate trade: see also Boyd v Carah Coaches Pty. Ltd. [6] .

1. (1954) 93 C.L.R. 1. 2. (1955) 93 C.L.R. 127. 3. (1979) 145 C.L.R. 78, at p. 84.

It is of course clear that the officers who are given a discretion to grant or refuse a permit "must exercise their discretion for the purposes for which it is conferred ascertained from the general scope and objects of the plan of control embodied in the [Act]": Wilcox Mofflin Ltd. v New South Wales [7] . On behalf of the defendants (the responsible Queensland Minister and the State of Queensland) and the intervener (the Attorney-General for New South Wales) it was submitted that the discretion was given for the protection of indigenous fauna in Queensland and perhaps in Australia generally. It was argued that the prohibitions and restrictions effected by s. 64 are the only practicable and reasonable way of protecting native fauna. Reliance was placed on the following dicta of the Privy Council in The Commonwealth v Bank of N.S.W. [8] :

It was urged by the appellants that prohibitory measures must be permissible, for otherwise lunatics, infants and bankrupts could without restraint embark upon inter-State trade, and diseased cattle or noxious drugs could freely be taken across State frontiers. Their Lordships must therefore add, what, but for this argument so strenuously urged, they would have thought it unnecessary to add, that regulation of trade may clearly take the form of denying certain activities to persons by age or circumstances unfit to perform them or of excluding from passage across the frontier of a State creatures or things calculated to injure its citizens. No doubt a statute that imposes reasonable restrictions in the interest of public health may be justified as a permissible regulation of interstate trade which does not infringe s. 92, and such reasonable regulation may in appropriate cases extend to the absolute prohibition of the trade in or movement into the State of dangerous goods or diseased persons, plants or animals. However it is unnecessary to discuss that question in the present case. It is impossible to agree that the prohibition of the movement of cockatoos from New South Wales to Queensland is reasonably necessary either in the interests of the health of the community or of the preservation of cockatoos. As the stated case reveals, wild cockatoos, which are to be found along the whole of the east coast of Australia and in Papua New Guinea, are continually flying across the border between New South Wales and Queensland. The number of cockatoos in commercial trade is miniscule (to use the words of the stated case) in comparison with the number of wild cockatoos. No material was placed before the Court to suggest that the species is, or is likely to be, endangered by that trade. The argument now submitted for the defendants is similar to that advanced and rejected in Fergusson v Stevenson [9] . 1. (1952) 85 C.L.R. 488, at p. 521. 2. (1949) 79 C.L.R. 497, at p. 641; [1950] A.C. 235, at pp. 311-312. 3. (1951) 84 C.L.R. 421.

It was further submitted on behalf of the defendants that the possibility that a discretion may be exercised in a way which may impair the freedom of interstate trade does not invalidate the statutory provision conferring the discretion. It is true that "in the case of wide executive and administrative authorities depending upon statute, s. 92 does not operate to invalidate the whole statutory authority because, in the purported exercise of the authority, administrative measures may be taken which conflict with s. 92": Wilcox Mofflin Ltd. v New South Wales [10] ; and see J. Bernard & Co. Pty. Ltd. v Langley [11] . However, s. 64 of the Act does not merely permit administrative action to be taken in a way that would impose an impermissible burden on interstate trade. The direct operation of the section imposes such an impermissible burden. The defendants submitted that the plaintiff might have obtained a permit had he applied for one. In fact since June 1972 the Department has issued thousands of applications for permits to send and bring sulphur-crested cockatoos into Queensland and there have been approximately fifteen-twenty such applications each week in the State of Queensland alone; all such applications have been granted and appropriate permits issued. In considering the validity of a statute which is said to infringe s. 92, the Court must consider the law according to its own terms, and the fact that the actual administration of the law may not be inconsistent with s. 92 is immaterial: " administrative practice is not the measure of the legal operation of the regulations and it is with the latter alone that we are concerned": Collier Garland Ltd. v Hotchkiss [12] .

1. (1952) 85 C.L.R., at p. 522. 2. (1980) 153 C.L.R., at p. 658. 3. (1957) 97 C.L.R. 475, at p. 486, and see also at pp. 483, 488.

Particular reliance was placed on a passage in Buck v Bavone [13] . In that case a potato grower who was unregistered under the legislation in force in South Australia which made it an offence for an unregistered person to grow potatoes for sale, sold potatoes interstate. It was held that he was not protected by s. 92. The question in that case was whether the registration requirements were merely regulatory in effect and it was held that they were. The grower submitted that the legislation defined too narrowly the class of persons entitled to registration and did not allow the registration of every grower who might wish to sell his potatoes interstate. In relation to this question I said [14] :

To establish a breach of s. 92 it is not enough to suggest the possibility of theoretical infringements of freedom that are remote from reality: cf. Hughes and Vale Pty. Ltd. v New South Wales [No. 2] [15] . Moreover, it is unnecessary to consider hypothetical cases that may never arise [The grower] has not shown that in the circumstances he was not entitled to registration as of right; he has therefore not shown that his freedom to sell interstate has been affected. 1. (1976) 135 C.L.R. 110, at p. 120. 2. (1976) 135 C.L.R., at p. 120. 3. (1955) 93 C.L.R., at p. 160.

In that case it was not shown that the statute, if given effect according to its own terms, would affect the grower's freedom to sell interstate. In the present case, on the other hand, the statute by its own terms does affect the plaintiff's freedom of interstate trade, commerce and intercourse and the fact that it may be administered in a way that would not have such a result does not mean that the infringement is theoretical.

For these reasons s. 64 of the Act could not validly apply to prevent fauna from being sent or brought into Queensland from another State. It is not possible to read down the section in a way that would render it applicable to the present case.

I would accordingly answer the questions which have been stated for the opinion of the Full Court as follows:

(a) Were the birds at the time they were seized and detained by the fauna officer the subject of trade, commerce and intercourse between the States within the meaning of s. 92 of the Constitution? Answer: Yes.

(b) Is s. 64(3) of the Act invalid in so far as it would apply to fauna the subject of trade, commerce and intercourse between the States? Answer: Yes.

(c) Is s. 64(3) of the Act invalid in so far as it applies to fauna sent or brought into the State of Queensland in the course of interstate trade? Answer: Yes.

(d) Is s. 64(3), when read together with s. 14(1)(g) of the Act, invalid in so far as it would operate to give a fauna officer power to seize and detain fauna the subject of trade, commerce and intercourse between the States? Unnecessary to answer.

(e) Is s. 64(3), when read together with s. 14(1)(g) of the Act, invalid in so far as it would operate to give a fauna officer power to seize and detain fauna sent or brought into the State of Queensland in the course of interstate trade? Unnecessary to answer.

I agree with the reasons for judgment given by the Chief Justice and with his answers to questions stated for the opinion of the Full Court.

I agree with the reasons for judgment of the Chief Justice and with his answers to the questions stated.

The plaintiff, a licensed fauna dealer in New South Wales, sold sulphur-crested cockatoos to a buyer in Queensland for delivery in Queensland. The sending of the cockatoos to the buyer in Queensland was a transaction protected by s. 92 of the Constitution: it was a transaction of the fourth category mentioned in W. & A. McArthur Ltd. v Queensland [16] . But s. 64(3) of the Fauna Conservation Act 1974 Q prohibits the sending of fauna into Queensland without a permit. A general prohibition on the sending of any fauna (as defined) into Queensland is too broad to be consistent with s. 92 of the Constitution. Is the validity of s. 64(3) saved by the existence of a discretion to grant and issue a permit? If a statutory prohibition on a particular class of transaction is invalid by reason of s. 92, the existence of an administrative discretion to grant an exemption from the prohibition does not save the prohibition from invalidity unless the discretion is so confined that it must be exercised for a purpose and in a manner consistent with s. 92 of the Constitution. It is not sufficient that it may be so exercised. The discretion under s. 64 may be exercised consistently with s. 92 but it need not be so exercised. It is too wide, as the Chief Justice has shown. Therefore the prohibition in s. 64(3) is invalid. I agree with the order proposed by the Chief Justice.

The essential content of the guarantee of absolute freedom of interstate trade, commerce and intercourse contained in s. 92 of the Constitution would seem to have again become a matter of unresolved controversy. It can no longer be regarded as settled that questions of suggested invalidity by reason of contravention of that guarantee must primarily be resolved by reference to whether the formal criterion of operation of the impugned law satisfies the requirements of some formula substituted by the Court for the words of the section. It is, however, unnecessary that I pursue that question in the present case. It suffices for present purposes to recognize that, whatever view one takes of the precise content of s. 92, the section at least affords a prima facie guarantee against the application to goods the subject of legitimate interstate trade of a direct legislative or administrative prohibition of the passage of goods from one State to the other.

As a matter of both form and substance, s. 64 of the Fauna Conservation Act 1974 Q ("the Act"), the provisions of which are here impugned, directly blocks the entry into Queensland of the goods to which it applies as at the frontier between that State and New South Wales. It imposes, under criminal sanction, a prohibition of entry of those goods which is relaxed only in the event of the exercise by a Queensland official of a discretionary power to grant a permit allowing entry. That being so, the provisions of s. 64 of the Act are invalid by reason of contravention of the guarantee of s. 92 of the Constitution, at least in their application to goods in the course of interstate trade or commerce, unless they can be justified on some ground such as that they go no further than is necessary for legitimate regulatory or conservational purposes.

The sulphur-crested cockatoos involved in the case were, on the facts agreed upon by the parties or found by Dowsett J., the subject of interstate trade. They were sent and brought into Queensland in the course of that interstate trade. At one stage in the course of argument, it was suggested that the particular cockatoos had been outside legitimate trade or commerce for the reason that the possession of them in New South Wales had been unlawful. That argument collapsed, however, when it emerged that the birds had not, in fact, been protected under New South Wales law at the relevant time. In view of the combined width of the definitions of fauna, mammal, bird and carcass contained in s. 5 of the Act and the discretionary nature of the power to grant a permit for entry, the provisions of s. 64 of the Act cannot, to the extent that they would apply to goods the subject of interstate trade, be saved from invalidity under s. 92 on the ground that they go no further than is necessary for legitimate regulatory or conservational purposes. Nor is there any other basis upon which the provisions of s. 64 of the Act could apply to prohibit the entry of the cockatoos in the present case consistently with the constitutional guarantee of the freedom of interstate trade, commerce and intercourse of s. 92.

The questions in the stated case should be answered in the manner proposed by the Chief Justice.