Buck v Bavone

Buck v Bavone - [1976] HCA 24 - HCA 1976 case summary — Zoe

[28]

The first question that arises is whether s. 18(2) of the Act gives the Board an arbitrary or very wide discretion to decide whether a grower who applies for registration should be granted it. If so, the authority of such cases as Hughes and Vale Pty. Ltd. v. New South Wales [No. 2] [4] establishes that the provision will be invalid. It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. Hughes and Vale Pty. Ltd. v. New South Wales [No. 2] itself was a case of that kind. Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed. Under s. 18(2) of the Act the matters of which the Board must be satisfied before an applicant will be entitled to registration are clearly defined, and they do not permit the Board to exercise any judgment as to the fitness of the applicant or to apply its own notions of policy in reaching its decision. The Board has to be satisfied that "in the period for which registration is required he" (the applicant) "is growing or will grow potatoes for sale, either on land owned or occupied by him, or under a share-farming agreement". It is impossible to suppose that the Board acting in good faith could fail to be satisfied that a person was growing potatoes if that were the fact. No doubt the questions whether the applicant will grow potatoes, and whether they are being grown or will be grown for sale, make it necessary for the Board to decide whether it accepts an applicant's statements as to his intent, but having regard to the nature of the issue the possibility that the Board acting honestly might wrongly fail to be satisfied of those matters seems to me theoretical rather than practical. In the nature of things an erroneous decision by the Board on such a question could be readily reviewed by the courts. The requirement that a grower who effects an interstate sale shall be registered does not burden the grower's interstate trade, because the grower will be entitled to be registered, and for reasons which I shall give registration does not entail any burdensome consequences. The possibility that the Board may wrongly refuse to grant registration, thus putting the grower to the trouble and expense of resorting to the courts, does not mean that s. 18 would be invalid if it applied to interstate trade: Wilcox Mofflin Ltd. v. New South Wales [5] ; Kerr v. Pelly [6] .

[30]

However, as I have already indicated, a person will not be entitled to registration unless he satisfies the Board that in the period for which registration is required he is growing or will grow potatoes. According to the submission of the respondent the section defines too narrowly the class of persons entitled to registration and does not allow the registration of every grower who may wish to sell his potatoes interstate. Clearly enough a person who had grown potatoes for a purpose other than sale - for example, for his own consumption or for use as seed potatoes on his own land - and then, after he had taken the whole crop off the land, had changed his mind and wished to sell the potatoes interstate, could not obtain registration if he did not intend to grow potatoes for sale in the future. He would not be a person who "is growing or will grow potatoes for sale". Also a person who had grown potatoes for sale and who had been registered, but whose registration had expired after he had harvested his entire crop but before he had sold it, and who did not intend again to grow potatoes for sale, could not obtain futher registration, and the section if valid would render a sale by him unlawful. Perhaps a case could also arise in which the land on which potatoes were grown was neither owned nor occupied by the grower, and there was no share-farming agreement. These however are exceptional cases, unlikely to arise in the normal course of trading. 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] [7] . Moreover, it is unnecessary to consider hypothetical cases that may never arise. It has not been shown that the respondent would not have been entitled to registration if he had sought it before he sold the potatoes to the buyer in Broken Hill. All that appears in the evidence is that the respondent had been growing potatoes only for the one year during which the alleged offence occurred; there is not the least suggestion that he was growing them otherwise than for sale and it does not appear whether or not he had harvested his whole crop. He 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.

[43]

No limit is placed by the statute on the amount of levy and since the Board is empowered to buy and sell potatoes s. 16(d)) the power to levy might be used to help make up trading losses incurred by the Board in dealing in potatoes other than those of the grower levied. The levy is not simply a tax on production of potatoes, justifiable within the principle of such cases as Damjanovic & Son Pty. Ltd. v. The Commonwealth [9] . Nor is it a fee paid towards the cost of registration, or as recompense for services or facilities provided by the Board, within the principles discussed in Freightlines and Construction Holdings Ltd. v. New South Wales [10] . It was not contested that a grower could not be compelled to pay the levy as the price of engaging in interstate trade or as a tax on that trade. If s. 12 were given its full effect, so that it applied to growers making interstate sales, its provisions could not stand consistently with s. 92 of the Constitution. However, the Act is to be construed so as not to exceed the legislative power of the State of South Australia, and is to be treated as valid to the extent to which it does not exceed that power: s. 22a of the Acts Interpretation Act, 1915 S.A., as amended. That section reverses the presumption that the Act is to operate as a whole, and reveals the legislative intention that any parts of the enactment found constitutionally unobjectionable should be carried into effect independently of those which fail: Bank of New South Wales v. The Commonwealth [11] . It is unnecessary to consider whether s. 12 is wholly invalid, and I express no opinion on that question. However, I can find no indication of any intention that ss. 12 and 18 should be interdependent, or that the rules of interpretation contained in s. 22a should not apply to the Act. If s. 12 is pro tanto invalid, it does not apply to a grower engaged in interstate trade. If it is wholly invalid, its invalidity does not infect s. 18. The two sections are distinct and severable. Liability to pay the levy is not a condition of registration. There is no other reason why s. 18 cannot be given effect independently of s. 12. Section 12 purports to enact that a consequence of registration may be liability to pay the levy; that consequence cannot validly be made to follow registration of an interstate trader; however, the intention of the legislature is that if s. 18 is valid in itself it should be given effect notwithstanding that the provisions of s. 12 fail wholly or in part; therefore, since s. 18 is not otherwise objectionable, it takes effect although registration under it does not expose an interstate trader to the consequences provided by s. 12. The result is that a grower who sells his crop interstate is obliged to register, but does not by reason of his registration become liable to the levy. 1. (1968) 117 C.L.R. 390. 2. (1967) 116 C.L.R. 1; [1968] A.C. 625. 3. (1948) 76 C.L.R. 1, at p. 371.

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