The exemption in s 11(2)
35 Insofar as s 11(2) is concerned, the fundamental issue here is the nature and scope of that part of the first exception which concerns laws "that regulate the manner of the sale of goods".
36 I accept the applicants' contention that the exceptions must be construed in a way which does not remove or swallow up the operation of ss 9 and 10 of that Act. That approach is consistent with the following passages in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [70] per McHugh, Gummow, Kirby and Hayne JJ:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, , Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed .
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals . Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" . Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme (footnotes omitted and emphasis added).
37 Having regard to the text and purpose of the Mutual Recognition Act, it seems to me to be plain that ss 9 and 10 are at the top of the hierarchy of the Act's provisions. It is those provisions which establish and give content to the mutual recognition principle. Section 11 creates certain exceptions and has the effect of taking certain regulatory requirements outside the sphere of operation ss 9 and 10. In creating exceptions to the mutual recognition principle, s 11 is properly viewed as a "subordinate provision". The exceptions it creates should not be construed in a way which denudes ss 9 and 10 of their intended operation. In my view, ss 9, 10 and 11 should be construed harmoniously so that each provision is given a meaningful operation and effect having regard, of course, to important considerations of text and purpose. In general terms, that means that ss 9 and 10 ought to be read as broadly as their text and purpose permits, while s 11 is to be read more narrowly, but also having regard to its text and purpose and with a view to maintaining the unity of the statutory scheme.
38 With those general principles in mind I make the following observations concerning the meaning and scope of ss 9, 10 and 11 of the Mutual Recognition Act. As noted above, s 9 of the Mutual Recognition Act creates the mutual recognition principle, the effect of which is to allocate a right to sell goods in any participating jurisdiction in Australia without having to comply with any of the further requirements set out in s 10 as long as the goods in question have been produced in or imported into another participating jurisdiction and may lawfully be sold in that jurisdiction. Further requirements that do not need to be complied with include standards relating to the goods themselves, including requirements relating to their composition (see s 10(a)). In my view, the requirements of the EPBC Act relating to the need to use recyclable or other approved material in relevant containers containing beverages are requirements falling within s 10(a).
39 Section 10(b) identifies another further requirement which need not be complied with, namely any requirement that goods satisfy standards relating to the way the goods are presented, including requirements relating to their packaging and labelling. In my view, the requirement of the EPBC Act relating to the need for a regulated container to bear an approved refund marking is covered by s 10(b) of the Mutual Recognition Act.
40 Finally, s 10(e) has the effect of including within the notion of "further requirements", "any other requirement relating to sale that would prevent or restrict, or would have the effect of preventing or restricting, the sale of the goods in the second state". In my view, the requirement imposed by the EPBC Act that relevant persons must obtain a supply approval, which is conditioned in part on the holder of the supply approval implementing and maintaining a WMA, falls within s 10(e) of the Mutual Recognition Act.
41 In my opinion, the applicants are correct in their contention that s 11(2) is concerned with laws which generally are directed to the transaction of selling. Such a construction is consistent with the principle of harmonious construction referred to above, gives effect to the intended hierarchy of the relevant provisions and is not inconsistent with the text. I do not mean to suggest, however, that the first exception only applies to laws which are directed to the transaction of selling. Generally that will be the case, but it would be imprudent to make any absolute statement having regard to the need for the provision to accommodate a wide range of circumstances and laws, most of which could not be predicted at this stage.
42 A construction which views s 11(2) as concerning laws which generally are directed to the transaction of selling is supported by the following additional considerations:
(a) it is to be noted that s 11(2) sets out what is described as the "first exception" to the mutual recognition principle. That exception actually includes two types of laws, namely laws that regulate the manner of the sale of goods and laws that regulate the manner in which sellers conduct or are required to conduct their business. The provision then sets out various examples of such laws, which are non-exhaustive. The examples are expressed in a way which does not draw any clear distinction between laws that regulate the manner of the sale of goods and laws that regulate the manner in which sellers conduct or are required to conduct their business. This suggests that there is some relationship between the two different kinds of laws. Otherwise, one would have expected that a separate exception would have been created for each of the two categories of laws and particular examples given to illustrate each category. These matters lend some support for reading the first exception as being generally concerned with laws which are directed to the transaction of selling; and
(b) the examples set out in s 11(2) provide further support for that construction, but in a different way. Although the significance of the examples should not be overstated (bearing in mind the limitation on their use imposed by s 15AD of the AIA and the additional fact that the text of s 11(2) itself emphasises that the examples are non-exhaustive), those examples are generally consistent with a construction of s 11(2) which views it as being directed in general to the transaction of selling. Examples (a), (b) and (c) all plainly deal with aspects of the transaction of selling. Although the examples in (d) and (e) may not be quite as clear, they also appear to be directed to aspects of the transaction of selling. The persons to whom goods may or may not be sold (such as minors) can properly be seen to be an aspect of the transaction of selling. Similarly, although I accept that example (e) (i.e. the circumstances in which goods may or may not be sold) is very broad on its face, that example can also be viewed as being generally directed to the transaction of selling. That produces an outcome which is consistent with the proper construction of the substantive text in s 11(2). Furthermore, and significantly, that approach is faithful to the limitation imposed by s 15AD(b) of the AIA, which provides that, where an example is inconsistent with the provision to which it relates, the provision prevails.
43 The Territory's contention that the Scheme is within the first exception is also inconsistent with the unequivocal statement in the second reading speech set out in [31] above concerning the earlier requirement in Western Australia that margarine be packed in cube tubs. The plain intention underlying the Bill was that the mutual recognition principle would override any such packaging requirements. It is legitimate to refer to such extrinsic material to confirm that the meaning of the relevant aspects of ss 9, 10 and 11 is the ordinary meaning conveyed by the text and taking into account its context in the Mutual Recognition Act and the purpose or object of that legislation (see s 15AB(1) of the AIA).
44 For completeness, I should also record that I consider that Recital E of the Intergovernmental Agreement provides little if any support for the Territory's position. As noted above, the Territory contends that the Mutual Recognition Act should be construed so as to give effect to the proposition set out in Recital E, which is to the effect that the Scheme for introducing mutual recognition principles only seeks to interfere with regulation in relation to goods insofar as the regulation "effectively seeks to prohibit sale of such goods". In my view there are several difficulties with the Territory's reliance upon this aspect of the Intergovernmental Agreement. The first is that it operates not only in respect of requirements which prohibit sales, but also laws which have a less draconian effect. It is notable that the term "requirements" is defined in s 4 of the Mutual Recognition Act as meaning (when used in relation to goods) "requirements, prohibitions, restrictions or conditions". Accordingly, it is clear that the legislation is intended to operate not only by reference to laws which prohibit sales, but also laws which impose restrictions or conditions.
45 Secondly, there is in any event, no inconsistency between the terms of the Mutual Recognition Act and Recital E of the Intergovernmental Agreement when proper emphasis is placed upon the reference in Recital E to regulation which "effectively" seeks to prohibit sale of such goods. As noted above, the EPBC Act imposes various requirements in the form of restrictions or conditions which, if not complied with, result in the sale of the relevant goods (in this case, beverages in containers) being prohibited.