Boyd v Carah Coaches Pty Ltd

High Court of Australia|1979-07-01|Before: Aickin JJ, Fullagar J

For the reasons I have given, I would answer the questions asked by the special case - (i) Yes. (ii) Yes.

I have had the advantage of reading the reasons for judgment of Mason J. I am in full agreement with his reasoning and with the answers which he has proposed should be given to the two questions stated to the Court.

The provisions both disciplinary and prohibitory which, in the early portions of his Honour's reasons for judgment, are described as concerned with the prohibition of conduct detrimental to the public are very much the stuff of regulation. The licensing system which the Act also sets up is not the less appropriate as subject-matter for permissible regulation because it is a licensing system. Such a system may be quite compatible with the freedom of interstate trade. It serves, with respect to those proposing to engage in particular occupations or activities, much the same purpose as do laws which require particular perishable foodstuffs to be subjected to government inspection before they reach the consumer. That purpose is achieved by not dissimilar means, allowance of course being made for the very different subject-matter which is being dealt with. In each case the legislation seeks to protect members of the public by ensuring that they do not, unawares, come into contact with persons or food-stuffs which, although held out as suitable for the satisfaction of the public's needs, are in fact unsuitable or even injurious to consumers.

In each case an alternative mode of regulation would no doubt be possible, a mode dependent exclusively upon the creation of a series of standards, in the one case of conduct, in the other quality. Combined with provisions for the detection and punishment of any breach of those standards, the whole would form a mode of regulation which might prove to be less restrictive of particular instances of interstate trade upon which it operated. But, for the reasons which I have so recently stated in Permewan Wright Consolidated Pty. Ltd. v. Trewhitt [11] , this is in itself no ground for holding the other mode of regulation as incapable of valid application to interstate trade.

Whether the system of licensing provided for by this legislation has valid application to interstate trade depends upon its precise terms and their effect. Mason J., after an examination of the terms of the Act, has concluded that the Board has an unfettered discretion to refuse any application for a licence which has been the subject of an objection either by a member of the public or by one of the Board's inspectors. As his Honour points out, this necessarily disqualifies it as reasonable regulation, as that expression has come to be used in the context of s. 92. Invalidity is the inevitable outcome.

Judicial notice may no doubt be taken of the fact that travel agents handle large sums of money, which they receive from the public so that it may be applied in the purchase of tickets and the like. It is notorious that on occasion these moneys have been misappropriated. Putting to one side for the moment the effect upon validity of unfettered discretion, these circumstances bear upon the reasonableness, and hence the validity, of certain of the regulatory measures imposed; in this regard, I agree with all that his Honour has to say about the reasonableness of the provisions contained in s. 13 (12) (a) (iii) and (iv) of the Act and with the different views which he expresses concerning the latter portion of s. 13 (12) (d) (ii), likewise with his observations concerning ss. 48 and 49.

I would answer the questions asked: (i) Yes. (ii) Yes.

This is a case stated by the Chief Justice in proceedings pending in the Central Court of Petty Sessions, Sydney, which were removed into this Court pursuant to s. 40 of the Judiciary Act 1903 Cth, as amended. The defendant company was charged in that during or about the month of June 1976 in the State of New South Wales it did carry on the business of a travel agent without being the holder of a licence granted to it for that purpose. The company relies on s. 92 of the Constitution as a defence to the charge.

At all material times the company was the owner of tourist motor coaches in which it carried passengers for reward upon holiday tours from Sydney, passing through New South Wales and at least one other State (Queensland, Victoria or South Australia) and returning to Sydney and other destinations in New South Wales. Accommodation for its passengers was reserved by the company in its own name and paid for out of its own funds. During the course of all holiday tours conducted by the company to interstate destinations the company's coach broke its journey at the end of each day to enable the passengers to use the accommodation reserved at the particular location.

Passengers of interstate origin who intended to fly to Sydney to join an interstate holiday tour conducted by the company were able to take advantage of an arrangement concluded between the company and Ansett Airlines of Australia Ltd. ("Ansett"). Under this arrangement a passenger purchased from Ansett, together with an airline ticket, reservations for accommodation and a voucher entitling the passenger to travel upon the holiday tour of his choice conducted by the company. Every passenger on the company's coaches paid a charge for the coach journey, the services and guidance of the coach captain, the handling of baggage and the provision of accommodation reserved by the company at its own cost at places of accommodation not owned by the company.

At all material times the company was not the holder of a licence granted under the Travel Agents Act, 1973. Nor did the company have in charge at each place at which it carried on business an individual nominated by the company and in respect of whom it is the holder of a licence.

The questions submitted for the opinion of the Court are:

(i) whether the company tourist coaches whilst carrying passengers and conducting holiday tours in the circumstances stated are engaged in trade commerce or intercourse amongst the States within the meaning of s. 92 of the Commonwealth Constitution;

(ii) whether the provisions of the Travel Agents Act, 1973 N.S.W. and the Regulations made thereunder so far as they affect the company in the circumstances stated whilst carrying passengers and conducting holiday tours in its tourist coaches contravene or any part of them contravenes s. 92 of the Commonwealth Constitution or are or is inapplicable to the company whilst so operating.

Mr. McHugh for the informant conceded that the company was engaged in interstate trade and commerce and that an affirmative answer must be given to question (i). By carrying passengers for reward between States the company is engaged in interstate trade and commerce (Australian National Airways Pty. Ltd. v. The Commonwealth [12] and Hughes and Vale Pty. Ltd. v. New South Wales [13] ). Moreover, by entering into contracts by which it promised to carry persons interstate it also carried on interstate trade, for contracts by which a carrier promises to carry a person interstate form part of that trade (W. & A. McArthur Ltd. v. Queensland [14] ; H. C. Sleigh Ltd. v. South Australia [15] ).

(1945) 71 C.L.R. 29. 2. (1954) 93 C.L.R. 1; [1955] A.C. 241. 3. (1920) 28 C.L.R. 530, at pp. 540, 559-560. 4. (1977) 136 C.L.R. 475, at pp. 494-495, 506-508.

The sole issue, therefore, is whether the Act and the regulations contravened s. 92. The company submits that the Act contravenes s. 92 on two grounds: first, that the prohibition against carrying on business without a licence constitutes a direct interference with the company's interstate trade; secondly, that by requiring every licensee to make an initial contribution to the Travel Agents Fidelity Guarantee Fund ("the Fund"), s. 48 imposes a direct burden on the interstate trade of a licensee which contravenes s. 92, as does s. 49 which empowers the Travel Agents Registration Board ("the Board") to impose a levy on licensees the amount of which is to be paid to the Fund.

The long title describes the Act as "An Act to provide for the licensing of travel agents and for the regulation of their operations ". The Act creates the Board (s. 7). Section 10 prohibits the carrying on of the business of a travel agent without a licence. So far as it is relevant, s. 10 provides:

(1) An individual, firm or corporation shall not carry on the business of a travel agent unless he or it is the holder of a licence granted to him or it on his or its own behalf.

Penalty: $2,000 and, in the case of a continuing offence, $200 for each day the offence continues.

(4) A corporation that carries on the business of a travel agent shall have in charge at each place at which it carries on that business an individual nominated by the corporation and in respect of whom it is the holder of a licence.

Penalty: $1,000 and, in the case of a continuing offence, $200 for each day the offence continues.

The activities of the company would not ordinarily be described as those of a travel agent because what it does is done as a principal on its own behalf. It does not sell tickets or grant rights to accommodation as an agent on behalf of others. However, s. 6 contains an extended description of what constitutes the carrying on of the business of a travel agent. Section 6 (1) and (3) provide:

(1) Subject to this section, a person carries on the business of a travel agent if the person -

(a) sells tickets entitling an individual to travel, or otherwise arranges for an individual a right of passage, on any conveyance (not being a prescribed conveyance);

(b) sells to, or arranges or makes available for, an individual rights of passage to, and hotel or other accommodation at, one or more places (being places within or beyond New South Wales, or some of which are within and others of which are beyond New South Wales);

(d) carries on any activity which may be prescribed; or

(e) holds himself out as, or advertises that he is, willing to carry on any activity referred to in paragraph (a), (b), (c) or (d).

(3) A person does not carry on the business of a travel agent in respect of any activity referred to in -

(a) subsection (1) (a) if he carries on that activity in respect of a conveyance of which he is the owner; or

(b) subsection (1) (b) if he carries on that activity in respect of a conveyance and place of accommodation of which he is the owner.

But for sub-s. (3) a bus company and an hotel proprietor would, by reason of s. 6 (1) (a) and (b), be carrying on business as travel agents merely because in the first case the company sells tickets to passengers travelling on its buses and in the second case because the proprietor makes rooms available to its guests. However, sub-s. (3) makes it plain that the carrying on of these activities does not in itself constitute the carrying on of the business of a travel agent.

The company does not fall within the terms of sub-s. (3). This is because it does not own the accommodation which it arranges or makes available for its customers. Consequently, the activities in which the company engages come within the provisions of s. 6 (1) (b). This is because the company "sells to, or arranges or makes available for, an individual rights of passage to, and hotel or other accommodation at" places within or beyond New South Wales.

The effect, then, of the prohibition in s. 10 (1), read in conjunction with s. 6 (1) (b), is to forbid the company, without a licence, from engaging in interstate trade and commerce by contracting with its customers to carry them interstate. The words "sells to, or arranges or makes available for, an individual rights of passage" are curious. They are seemingly intended to extend to transactions which cannot be accurately characterized as contracts of carriage. However, it cannot be doubted that they do apply to contracts of carriage. The Act in terms therefore prohibits activities which are of the essence of the company's business and of the interstate trade and commerce in which it engages.

The fact that a statute in terms prohibits a person from entering without a licence into transactions which constitute the carrying on of interstate trade and commerce is not in itself enough to establish a contravention of s. 92. If the prohibition is an element in a regulatory licensing scheme which leaves the trader free to carry on his interstate trade so long as he conforms to requirements prescribed so as to ensure a reasonable regulation of the trade for the protection of the public, there is no contravention of s. 92. (S.O.S. (Mowbray) Pty. Ltd. v. Mead [16] ; North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. [17] ).

(1972) 124 C.L.R. 529, at p. 544. 2. (1975) 134 C.L.R. 559, at pp. 600-601, 607-608, 615-616, 634.

Before examining the statutory licensing scheme I should say something of the provisions of the Act that are directed to regulating the conduct of licensees because much stress was laid by Mr. McHugh on the character of the Act as a regulatory statute. Division 2 of Pt III prohibits a series of acts and activities on the part of licensees and others which would be detrimental to the public: there is a prohibition against a person disqualified under the Act being a director of a corporation or a member of a firm carrying on business as a travel agent (s. 18 (1)); there are prohibitions against misleading signs (s. 21), the sharing by licensees of commissions, fees or rewards with unlicensed persons (s. 24 (1)), the lending of licences to other persons (s. 26), the publication of advertisements without the inclusion of prescribed particulars (s. 28) and the making of wilfully false or misleading statements in applications for a licence (s. 31).

Section 32 (1) provides (inter alia) that a licensee shall not

(d) without reasonable excuse, fail to perform his duties to his client or to carry out the instructions of his client;

(e) offer or sell, or advertise that he will offer or sell, tickets or rights of passage on any conveyance (not being a prescribed conveyance), or reservations for accommodation at any hotel or other place, that he is not authorised to offer or sell; or

(f) without reasonable excuse fail to arrange tickets or rights of passage on any conveyance (other than a prescribed conveyance), travel or accommodation or reservations that he has undertaken to arrange.

The licensee is required to display at his place of business prescribed particulars of his business (s. 20) and he is forbidden knowingly to employ in his business a person disqualified from holding a licence, a person whose licence has been cancelled or a person whose application for a licence has been refused (s. 22).

Part IV contains "Disciplinary Provisions". A licensee commits improper conduct if he (a) commits an offence against the Act or regulations; or (b) fails to comply with any provision of the Act or regulations (s. 34). A complaint may be made to the Board against a licensee or former licensee on enumerated grounds (ss. 35, 36). They include improper conduct, the ground that a licence was improperly obtained, and the further ground that a licensee or director of a corporation is not a fit and proper person to continue to hold a licence. The Board is directed to hold an inquiry into a complaint (s. 39). The Board may, after an inquiry, determine the complaint in various ways; it may suspend or cancel the licence and disqualify a person (s. 41). Part V deals with appeals. An appeal lies from a determination (except one that is in favour of a defendant) to the District Court (s. 42).

These provisions may, generally speaking, be characterized as regulatory. They prohibit, subject to penalty, conduct which is dishonest, unfair or otherwise detrimental to the public. The positive obligations which they impose are designed to promote a reasonable standard of efficient service to the public on the part of travel agents generally. It is against this background that the licensing system is to be understood. The company's objection to the licensing system is not that it is designed to secure compliance with the standards of conduct prescribed by the provisions to which I have referred but rather that its provisions permit the Board to refuse applications for licences on grounds that are alien to the freedom which s. 92 protects. It is with this objection in mind that I turn to the licensing provisions.

Licences shall be in force for twelve months (s. 11 (3)), and they are renewable for a like period (s. 11 (4)). The procedure to be followed in making application for a licence is prescribed (s. 12). The application shall contain such particulars as are prescribed (s. 12 (2)). Particulars of the application shall be forwarded by the registrar of the Board to the superintendent of licences for his inquiry into and report on such matters as may be prescribed (s. 12 (5)). Provision is made for lodging of objections to the grant of a licence (s. 12 (9)). Where no objection is made to the grant of a licence, the registrar shall, subject to the provisions of the Act, issue the licence (s. 12 (11)). An application in respect of which an objection has been lodged shall be heard and determined at a meeting of the Board (s. 13 (1)). At the hearing the applicant may appear himself or be represented. The Board may receive written submissions, may allow a barrister, solicitor, or other person to appear to adduce evidence tending to establish the grounds of objection, may call and receive evidence and may require evidence to be given on oath (s. 13 (3)).

Section 13 (12) is of critical importance. It provides (inter alia):

A licence or a renewal of a licence shall not be granted -

(a) in respect of any individual nominated under section 10 (2), (3) or (4) -

(i) unless the individual is of or above the age of eighteen years;

(ii) where the individual is disqualified from holding a licence under this Act, or is in the opinion of the Board not of good fame and character or otherwise a fit and proper person, if he were to apply for a licence, to hold the licence;

(iii) if the Board is satisfied that the individual is unlikely to be able to perform the duties generally performed by a travel agent by reason of the inadequacy of his educational attainments or experience;

(iv) if the individual does not meet such other requirements as may be prescribed; or

(v) if the person so nominating the individual is not the holder on his own behalf of a licence;

(i) where the corporation is disqualified from holding a licence under this Act;

(ii) where the Board is satisfied that the corporation is substantially owned or controlled by a person who is disqualified from holding a licence under this Act or that any director of the corporation is not of good fame or character or otherwise a fit and proper person, if he were to apply for a licence, to hold the licence or that the corporation is not a fit and proper person to hold a licence on its own behalf;

(iii) unless the Board is satisfied that the corporation has sufficient financial resources to carry on the business of a travel agent; or

(iv) if the corporation does not meet such other requirements as may be prescribed.

Paragraphs (b) and (c) set out similar requirements for the grant of a licence to an individual on his own behalf and to a firm on its own behalf, though it is specifically provided in these cases that a licence shall not be granted or renewed unless the Board is satisfied that the applicant has sufficient financial resources to carry on the business of a travel agent.

Regulation 8 has prescribed the following additional requirements for the purposes of s. 13 (12):

(1) For the purposes of s. 13 (12) (a) (iv) of the Act - That the individual is not an undischarged bankrupt or a person who has assigned his estate for the benefit of creditors.

(2) For the purposes of s. 13 (12) (b) (v) of the Act -

(a) That the individual is not an undischarged bankrupt or a person who has assigned his estate for the benefit of creditors.

(b) That the individual has proposed or actual business premises which are, in the opinion of the Board, suitable for conducting the business of a licensee.

(3) For the purposes of s. 13 (12) (d) (iv) of the Act -

(a) That the corporation is not in liquidation, in receivership, under official management or in the course of being wound up.

(b) That the corporation has proposed or actual business premises which are, in the opinion of the Board, suitable for conducting the business of a licensee.

An appeal lies to the District Court from a refusal or grant of an application under s. 13 (s. 42 (1)). The appeal is by way of rehearing (s. 42 (2)). The District Court, in deciding any such appeal, may confirm the determination of the Board appealed against or substitute for that determination any determination that the Board might have made (s. 42 (4)). The decision of the District Court shall be final and shall be deemed to be the determination of the Board (s. 42 (5)).

As I read these provisions the registrar is under a duty to issue a licence where no objection to the grant has been made (s. 12 (11)). The words "subject to the provisions of this Part" in the subsection attract to the licence so issued other provisions of the Part to the extent to which they are applicable, viz. ss. 15 and 16. The words do not in my opinion attract the provisions of s. 13 relating to hearings by the Board. In the first place, s. 13 provides for a hearing by the Board of applications in respect of which an objection has been lodged; there is no provision for a hearing or a determination by the Board where no objection is lodged. Secondly, when an objection is lodged the registrar is commanded to notify the applicant of the objection and furnish him with a copy of the statement referred to in s. 12 (9) (s. 12 (12)). The notice given by the registrar shall state the time and place of hearing of the application (s. 12 (13)). The absence of any corresponding provision for notice of hearing to the applicant in the case where there is no objection supports the view that an application, not objected to, is not to be considered by the Board and falls to be dealt with by the registrar in the manner already indicated.

The Act contains no provision requiring the Board to issue a licence to an applicant if he satisfies the Board of such of the matters referred to in pars (a), (b), (c) and (d) of s. 13 (12) as may be relevant to his application. Indeed, there is no limitation on the Board's power to refuse a licence. The absence of such a limitation stands in marked contrast to the express restriction on the Board's power to grant a licence arising from the opening words of sub-s. (12). Of equal significance is the circumstance that s. 12 leaves at large the grounds which may be taken by a person who lodges an objection to the grant of a licence. Not only does s. 12 fail to limit the permissible grounds of objection, s. 13 makes no endeavour to limit the matters which the Board can take into account in determining an application to which an objection has been lodged. When s. 13 (1) commands the Board to hear and determine the application, it must be understood as an instruction to the Board to determine the application in the light of the grounds taken by the objector. Moreover, s. 13 (3) (b) (ii) authorizes the Board to allow an appearance before the Board for the purpose of adducing evidence tending to establish the grounds of objection to the application, whatever they may be.

To my mind all these considerations point to the existence in the Board of a general, but unspecified, discretion to refuse an application for a licence. At every point where the legislature might have limited the issues for decision or the matters which the Board might take into account, it has signally failed to do so. At first I was inclined to think that the absence of a discretion to refuse a licence not objected to pointed to a different conclusion. However, it emerges from s. 12 (9) that an inspector employed by the Board may object to the grant or renewal of a licence and thereby preserve to the Board its discretion to refuse an application.

As Menzies J. observed in Attorney-General (N.S.W.) v. Stocks and Holdings (Constructors) Pty. Ltd. [18] , "it is in accordance with well accepted principle for the court to attribute to the Parliament of the State the intention of legislating within its own power so that, where possible, words used without express limitation should be read with such limitation as is necessary to keep the enactment within legislative power". The principle applies with as much, if not greater, force when the construction which takes the statute outside the limits of legislative power is one which is based, not upon express words, but upon a process of implication. Despite this, in my opinion the case is not one in which the principle of construction can be applied because, on the view which I take of the statutory provisions, their meaning is clear.

Besides, there is s. 14A of the Interpretation Act, 1897, as amended, which demands a different solution to the issue of invalidity. Instead of limiting the Board's discretion to refuse a licence, it writes down the operation of the Act so that it does not contravene s. 92, leaving the Board free to exercise its statutory discretion in cases which involve no element of interstate trade and commerce.

The presence of the Board's general discretion to refuse a licence makes it impossible to say that the Act does no more than regulate the interstate trade in a permissible way. The existence of the discretion enables the Board to refuse a licence on arbitrary and unspecified grounds which are quite obnoxious to the concept of freedom of interstate trade embodied in s. 92. To sustain the validity of the Act on the ground that it is regulatory it must be shown that the Board is bound to grant licences to those who comply with such requirements as may be prescribed in the course of regulating the trade in a way that does not offend s. 92. It is because the residual discretion reposed in the Board enables it to reject an application for reasons standing outside the matters specified in s. 13 (12) and the substantive provisions regulating the conduct of licensees that the prohibition against carrying on the business of a travel agent without a licence is in my opinion invalid.

In the result, I am unable to distinguish this case from Hughes and Vale Pty. Ltd. v. New South Wales [19] and Hughes & Vale Pty. Ltd. v. New South Wales [No. 2] [20] and Perre v. Pollitt [21] .

(1954) 93 C.L.R. 1; [1955] A.C. 241. 2. (1955) 93 C.L.R. 127. 3. (1976) 135 C.L.R. 139.

Additional criticism was made of the specified grounds on which the Board is instructed to refuse to grant a licence. It was urged that, even if the Board did not have a general discretion to refuse a licence, the specific grounds were not defined with sufficient particularity and precision to make it possible to say that they are consistent with the freedom which s. 92 guarantees - see Hughes & Vale [No. 2] [22] . The conclusion which I have reached as to the existence of a general discretion to refuse a licence makes it unnecessary for me to deal with this argument. However, there are some observations which I should make upon it.

It is a matter of public knowledge that persons and companies carrying on the business of travel agents (using that expression in its ordinary meaning, not in the extended statutory sense) have foundered, leaving customers and creditors lamenting. Travel agents receive money from the public on the footing that it will be applied to particular purposes. In this respect their position is not dissimilar to that of solicitors and real estate agents whose activities are regulated by statute in the interests of the public. There is therefore a justifiable case for regulating the activities of travel agents so as to protect the public on the footing that reasonable regulation of the trade will not contravene s. 92 (Harper v. Victoria [23] ; Samuels v. Readers' Digest Association Pty. Ltd. [24] ; S.O.S. (Mowbray) Pty. Ltd. v. Mead [25] ; Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores [26] ; North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. [27] ; Buck v. Bavone [28] ; McGraw-Hinds (Aust.) Pty. Ltd. v. Smith [29] and Permewan Wright Consolidated Pty. Ltd. v. Trewhitt [30] ).

(1966) 114 C.L.R. 361, at p. 378. 2. (1969) 120 C.L.R. 1, at pp. 19-20, 36-38, 40. 3. (1972) 124 C.L.R., at p. 544. 4. (1972) 127 C.L.R. 617, at pp. 640, 651-652. 5. (1978) 134 C.L.R., at pp. 600-601, 607-608, 615-616, 634. 6. (1976) 135 C.L.R. 110. 7. (1979) 144 C.L.R. 633. 8. Ante, p. 1.

On this score no objection can successfully be taken to the requirement that an applicant be at least eighteen years of age or to the requirement that an applicant be not disqualified from holding a licence. An order for disqualification can only be made under s. 41 as a result of an exercise of discretion by the Board after an inquiry held under s. 39 in which it has been found that the applicant has been guilty of improper conduct within the meaning of s. 34. The order for disqualification is, as I have already pointed out, subject to an appeal to the District Court (s. 42). Both requirements are directed to ensuring that persons licensed by the Board are fit and proper persons to carry on the business.

The content of s. 13 (12) (a) (iii), inability to perform duties by reason of the inadequacy of the applicant's educational attainments or experience, was the subject of strong criticism. At bottom the criticism seemed to be founded on two propositions: (a) that the duties of a travel agent can be undertaken by anyone, no matter how daunting his lack of educational attainments and his lack of experience may be; and (b) that it is quite foreign to the freedom which s. 92 guarantees that a parliament should legislate so as to insist on a reasonable standard of service to the public. I would emphatically reject both these propositions. The conduct of the business of a travel agent calls for knowledge and an ability to handle with efficiency communications and financial transactions with organizations both domestic and foreign, though here we are concerned with interstate travel. Not everyone is fitted by education and experience to carry on such a business efficiently.

I use the word "efficiently" advisedly because the legislature is entitled to prescribe such reasonable standards as will promote an efficient service to the public in the course of regulating the travel agents industry. It is not to be thought that the concept of permissible regulation is confined to protecting the public from harm, fraud and malpractice. It extends also to the promotion of efficiency or other similar ends the Parliament sees as appropriate to ensure that the service which the public receives is of a reasonable standard. Just as there is no collision between s. 92 and regulatory legislation which protects the community from harm, fraud and malpractice, so there is no collision between the section and legislation which prescribes minimum standards so as to ensure that an efficient service will be provided to the public by those engaged in interstate trade and commerce. Legislation of that kind imposes no relevant burden on the trade.

The reference in s. 13 (12) (a) (iv) to "such other requirements as may be prescribed" was attacked on the ground that the power to make regulations given by s. 78 could be so exercised as to introduce a requirement which gives rise to a contravention of s. 92. However, s. 13 (12) (a) (iv) and s. 78 must be construed in the light of s. 14A of the Interpretation Act, 1897. So construed the power to prescribe other requirements is limited to requirements which will not contravene or give rise to a contravention of the constitutional prohibition.

The requirement most susceptible to criticism is that contained in s. 13 (12) (d) (ii) that any director of the corporation must be of good fame and character or otherwise a fit and proper person to hold the licence. It is the last element in the requirement that is open to challenge. It is by no means clear to me that it is a reasonable requirement to insist that each and every director of a corporation be a fit and proper person to hold the licence when it is not contemplated that each director will be a licence holder.

So far, I have considered the requirements contained in s. 13 (12) in their application to applicants for a licence to carry on business as a travel agent in the sense in which that expression is generally understood. Rather different considerations arise when one seeks to answer the question whether the requirements contained in s. 13 (12) constitute a reasonable regulation of the company's interstate trade which consists in granting rights of passage on its own coaches and in providing hotel and other accommodation reserved in its own name which it then makes available to its passengers. Perhaps the need for regulation of a business of this kind is not quite so strong. None the less the business which the company conducts is that of a tour operator and the reasons which serve to justify the regulation of the business conducted by travel agents seem to me to have a like application to the business conducted by a tour operator.

The final question relates to the validity of ss. 48 and 49 which create a liability to pay an initial contribution and to pay such levies as the Board may impose. Amounts so paid are deposited with the Fund which is set up by s. 43 (1) and which is the property of the Board (s. 43 (2)) and shall be administered by it (s. 47). Money standing to the credit of the Fund may be applied in a variety of ways but in particular for the purpose of reimbursing persons who may suffer pecuniary loss by reason of the theft or fraudulent misapplication by a licensee or by his employee or a person having the apparent control or charge of the office or business of a licensee.

On the view which I take of the licensing provisions there is no need for me to consider the company's challenge to the validity of ss. 48 and 49. However, as the question has been argued, I propose to say something about it. The challenge is of relevance in these proceedings only to the extent to which it may provide a further ground for an attack upon the licensing provisions. The issue in the case is whether the company has a defence to the charge of carrying on business as a travel agent without a licence. Consequently, it is material to consider the validity of the two sections if, and only if, it emerges that they cannot be severed from the licensing provisions, for then the invalidity of the two sections, if it be established, would provide an additional ground for bringing down s. 10 or confining the area of its operation to intrastate trade. If, however, it transpires that the licensing provisions can be severed from ss. 48 and 49 and preserved by applying s. 14A of the Interpretation Act, 1897, the validity of the two sections does not require separate examination (see Buck v. Bavone [31] ). Although it is the holding of a licence that exposes the licensee to liability to pay the initial contribution and the levy once it is made, the licensing provisions and ss. 48 and 49 are not in my view interdependent. The validity of the licensing provisions is not in any way dependent upon the validity of the two sections since the licensing provisions can operate independently of the provisions of Pt VI relating to the Fund. Consequently, s. 14A could be applied to save the licensing provisions if they were otherwise valid.

Accordingly, if, contrary to the conclusion I have reached, s. 13 did not contravene s. 92 by giving the Board a discretion to refuse a licence, the suggested invalidity of ss. 48 and 49 (as to which I express no opinion) would not have brought down s. 10 or confined its operation to intrastate trade and commerce.

In the result, I answer the questions asked - (i) Yes. (ii) Yes.

This proceeding has been removed from the Central Court of Petty Sessions, Sydney, under s. 40 of the Judiciary Act 1903. The informant alleges a breach of s. 10 of the Travel Agents Act, 1973 by the defendant, Carah Coaches Pty. Ltd., because it carried on a travel agency business without being "the holder of a licence granted to it" for that purpose. The facts stated disclose that the defendant carries passengers in tourist coaches and conducts holiday tours from New South Wales and passing through Queensland, Victoria and South Australia.

The questions submitted by the Chief Justice for the opinion of the Court are:

The defendant contends that both questions should be answered "Yes".

The defendant is engaged in trade and commerce among the States which is protected by s. 92 of the Constitution but, as I have previously said, that protection is freedom from customs duties and similar discriminatory fiscal imposts (see Buck v. Bavone [32] ; H. C. Sleigh Ltd. v. South Australia [33] ; Seamen's Union of Australia v. Utah Development Co. [34] ; Bartter's Farm v. Todd [35] ; Ex parte H. Brazil & Co. Pty. Ltd. [36] ; and McGraw-Hinds (Aust.) Pty. Ltd. v. Smith [37] ). The Travel Agents Act contains no such discriminatory impost. Section 92 is not contravened.

(1976) 135 C.L.R. 110. 2. (1977) 136 C.L.R. 475. 3. (1979) 144 C.L.R. 120. 4. (1978) 139 C.L.R. 499. 5. (1978) 138 C.L.R. 194. 6. (1979) 144 C.L.R. 633.

During argument, a question arose whether there was a discretion to refuse a licence to a person for a reason other than one specified in or under the Act. The answer lies in the way in which such statutes should be interpreted and involves the important issue of civil rights in a society which requires licences for engaging in various activities. In Attorney-General (Canada) v. Attorney-General (British Columbia) [38] , the Privy Council said:

The question here is one of construction. Do the regulations, rightly interpreted, give to the Minister any discretion in granting or refusing a licence where it is applied for by a qualified person?

The regulations in question affect both public and private rights of fishing. There is no express provision for withholding a licence where a qualified applicant submits a proper application and pays the small prescribed fee, and in their Lordships' judgment there is nothing in the language of the regulations giving rise to a necessary implication that the Minister has a discretion to grant or withhold the licence.

In Ex parte Wilson; Re Cuff [39] , the Full Court of the Supreme Court of New South Wales (in a judgment delivered by Jordan C.J.) held that an applicant is entitled as of right to obtain a licence under an ordiance dealing with electrical contracts and electricians if he is able to satisfy the committee that he has complied with the prescribed conditions. He stated [40] :

The language of the Ordinance is permissive; and this of itself would indicate an intention to invest the Committee with a power to grant or withhold a licence or to renew or refuse to renew a licence, at its discretion: Interpretation Act of 1897, s. 23; Julius v. Lord Bishop of Oxford [41] . But this is not conclusive. As was pointed out in the case just cited, there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so [42] . In the first place, there is the nature of the thing empowered to be done. "The Courts do not attribute an intention in the Legislature to interfere with the rights and liberties of the citizens of this country to work when, where, and for whom they please unless that intention is expressed in clear and unmistakable language": R. v. Mahony [43] . Then there is the fact that conditions are elaborately set out in the Ordinance, compliance with which is a condition of a licence being granted. These matters point to the conclusion that it is intended that an original licence shall be granted to any applicant who satisfies the Committee that he has complied with the prescribed conditions Section 13 (12) (d) of the Travel Agents Act states: A licence or a renewal of a licence shall not be granted -

(i) where the corporation is disqualified from holding a licence under this Act;

(iii) unless the Board is satisfied that the corporation has sufficient financial resources to carry on the business of a travel agent; or

(iv) if the corporation does not meet such other requirements as may be prescribed.

(a) That the corporation is not in liquidation, in receivership, under official management or in the course of being wound up.

(b) That the corporation has proposed or actual business premises which are, in the opinion of the Board, suitable for conducting the business of a licensee.

(1939) 40 S.R. (N.S.W.) 162. 2. (1939) 40 S.R. (N.S.W.), at pp. 166-167. 3. (1880) 5 App. Cas. 214. 4. (1880) 5 App. Cas., at pp. 222-223. 5. (1931) 46 C.L.R. 131, at p. 140.

In my opinion, the Travel Agents Board has no discretion to refuse to grant or renew a licence for a reason not referred to in s. 13. The Act also requires payment of an initial contribution (and annual sums as prescribed) by licensees to a Travel Agents Fidelity Fund. There is no discrimination against travel agents engaged in trade and commerce among the States.

The facts stated show that the defendant is a company incorporated under the laws of the same State Parliament whose legislation it challenges. In Buck v. Bavone [44] , I referred to a problem in the approach currently taken by the Court to s. 92. This has been absent from many s. 92 cases because, for example, those claiming the protection of s. 92 were individuals (see James v. Cowan; In re Botten [45] and James v. The Commonwealth [46] ) or corporations not created under the laws of the legislature against whose laws they claimed the protection of s. 92 (see Bank of New South Wales v. The Commonwealth [47] ). There is no constitutional compulsion on a State to provide for the incorporation of bodies to engage in trade and commerce among the States. It would seem to follow that it can provide for such incorporation or continuance of incorporation on conditions (cf. Murphyores Incorporated Pty. Ltd. v. The Commonwealth [48] ) or in governmental discretion. Thus, if a State were to legislate that companies which engaged in the travel agency business could be incorporated only under the Act and on the same conditions as are now required for a travel agent's licence, it is difficult, on views of s. 92 taken by the Court in recent cases, to see how this could be held to be outside the power of the State legislature. If that which occurs before or after trade, commerce or intercourse among the States is excluded from the scope of s. 92 (see Grannall v. Marrickville Margarine Pty. Ltd. [49] ; Beal v. Marrickville Margarine Pty. Ltd. [50] ; Ex parte H. Brazil & Co. Pty. Ltd. [51] ; Damjanovic & Sons Pty. Ltd. v. The Commonwealth [52] ; Carter v. Potato Marketing Board [53] and Bartter's Farms Pty. Ltd. v. Todd [54] ) then s. 92 does not apply to a condition which operates before the incorporation of the company claiming protection of s. 92, and before the company engages in trade or commerce among the States. The defendant's incorporation with, I assume, the express or implied object of engaging in travel agency business among the States, is obtained under a State Act and a separate State Act requires that the corporation conform to certain conditions in order to engage in the travel agency business. If the State can require compliance with certain requirements as a condition of incorporation, it raises a serious question whether it can achieve the same result by imposing similar conditions after incorporation.

(1976) 135 C.L.R. 110. 2. (1929) 42 C.L.R. 305; (1930) 43 C.L.R. 386; (1932) 47 C.L.R. 386; [1932] A.C. 542. 3. (1928) 41 C.L.R. 442; (1935) 52 C.L.R. 570; (1936) 55 C.L.R. 1; [1936] A.C. 578. 4. (1948) 76 C.L.R. 1. 5. (1976) 136 C.L.R. 1. 6. (1955) 93 C.L.R. 55. 7. (1966) 114 C.L.R. 283. 8. (1978) 138 C.L.R. 194. 9. (1968) 117 C.L.R. 390. 10. (1951) 84 C.L.R. 460. 11. (1979) 139 C.L.R. 499.

In my view, the protection of s. 92 extends to include that which in substance is a discriminatory impost, although in form applicable to events occurring before or after trade, commerce and intercourse among the States (as in Fox v. Robbins [55] ). If a State were to use refusal to incorporate or to continue incorporation as a means of enforcing a fiscal impost discriminating against trade and commerce among the States, this would be a breach of s. 92.

The Act is designed to protect the public from malpractices and insolvency which have recently been an element of the travel agency business. Section 92 was not intended to be an instrument for undermining and destroying social legislation of this type. As Lord Wright said:

The idea of s. 92 as a power in the air brooding and ready in the name of freedom to crush and destroy social and industrial or political experiments in Australian life ought, I think, to be exploded. In truth, as I said, s. 92 is both pedestrian and humble, though very essential from the point of view of the founders of the Constitution who wished to establish internal inter-State free trade in fiscal matters for all time. (Sydney Law Review, vol. 1 (1954) 145, at p. 157.) If, apart from discriminatory fiscal imposts, a State were to interfere adversely with trade and commerce among the States, the remedy lies with the Australian Parliament. Section 51 (1) of the Constitution, which empowers the Parliament to make laws with respect to "trade and commerce among the States", enables it to foster such trade and commerce, if necessary by overriding State laws.

I have had the advantage of reading the reasons for judgment prepared by the Chief Justice in this appeal. I agree with his reasons and his conclusion. I agree also with his observations as to the possible application of Pt VI of the Travel Agents Act 1973 and as to the position of laws expressed to be for the promotion of "efficiency" and the "public interest". Accordingly I would answer each of the questions asked in the stated case in the affirmative.

High Court of Australia Barwick, C.J. Gibbs, Stephen, Mason, Murphy and Aickin JJ. Boyd v Carah Coaches Pty Ltd [1979] HCA 56

At a glance

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Before

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Judgment (115 paragraphs)

Parties

Cases Cited (1)