Graham v Paterson

It is contended, however, that the Act is invalid because it applies in general terms to all sales (that is to all sales in Queensland) of declared goods in respect of which prices are fixed and therefore applies to sales in inter-State trade and commerce. It is argued that the Act therefore imposes a restriction upon such sales by fixing prices therefor, with the result that such sales are not "free" so that the Act is invalid as infringing s. 92 of the Constitution. The Court will not decide such a question unless it is necessary to do so for the purpose of determining a particular case before the Court.

Section 2 of The Profiteering Prevention Act of 1948 is in the following terms: - "(1) This Act and every Proclamation, Order in Council, regulation, declaration, order, approval, direction, requirement, determination, notice, authority, notification, or prohibition or other act of executive or administrative authority made, issued, published, given, or done under or pursuant to this Act by the Governor in Council, the Minister, the Board, the Commissioner, any delegate of the Commissioner, or any other person or authority, shall be read and construed so as not to exceed the legislative power of the State to the intent that where any enactment contained in this Act, or provision contained in any such Proclamation, Order in Council or regulation, or any (or any term, provision, condition, or limitation of any) such declaration, order, approval, direction, requirement, determination, notice, authority, notification, or prohibition or other act of executive or administrative authority would but for this section be construed as being in excess of that power, it shall nevertheless be a valid enactment, provision, declaration, order, approval, direction, requirement, determination, notice, authority, notification, prohibition, or, as the case may be, other act of executive or administrative authority to the extent to which it is not in excess of that power."

"(2) It is hereby declared to be the intention of the Legislative Assembly - (a) That if any enactment of this Act is inconsistent with the Commonwealth of Australia Constitution Act, or if any executive or administrative act done under or pursuant to this Act is in part so inconsistent, that enactment and all the other enactments in this Act, or, as the case may be, that part and all the other parts of the executive or administrative act in question shall nevertheless operate to the full extent to which they can operate consistently with the Commonwealth of Australia Constitution Act; and (b) That the provisions of paragraph (a) of this subsection shall be in addition to, and not in substitution for, the provisions of subsection one of this section."

It is unnecessary to examine in detail the possible effect of this provision in relation to all conceivable circumstances and contingencies because at least it is clear that the Legislature has declared its intention that the provisions of the Act should have no operation in any case to which they cannot validly be applied by reason of any inconsistency of the Act with any provision of the Commonwealth Constitution. The relevant provisions of the Act relate to sales of goods and the Act therefore deals with trade and commerce. It is plain, therefore, that s. 2 (2) refers to s. 92 of the Constitution, whether or not it has any relation to any other provision in the Commonwealth Constitution. Accordingly the Act has thus provided a criterion whereby the application of the Act to different sets of circumstances may be determined in accordance with the intention of the Legislature. As the Act has provided this criterion, difficulties which were referred to in Pidoto v. Victoria [1] do not arise in the present case. The effect of s. 2 in relation to the present case is that if the application of the Act to the sale of the bread by the appellants would infringe s. 92 the Act should not have any operation in relation to that sale. Therefore, if, as contended for the appellants, the Act in its general terms applies invalidly to transactions protected by s. 92 and is therefore invalid in such application, the intention of the Parliament has been clearly declared that the Act should not so apply, but that it should apply to transactions to which it is validly applicable.

The sale in question had no inter-State element whatever. The fact that bread sold in Coolangatta might be taken across the border to New South Wales did not bring about the result that a sale across the counter in Coolangatta was an inter-State transaction to which s. 92 applied. It is therefore unnecessary to consider whether the Act, if applied to inter-State transactions, is invalid. It is certainly valid in relation to other transactions and so far as s. 92 is concerned is valid in relation to the sale in this case.

But the appellants also contend that the Act is invalid for two other reasons, first, that the Act is an amendment of the earlier Commonwealth Powers Act of 1943 Q. and that it has not been passed in the manner prescribed by s. 3 of that Act, so that it is therefore invalid.

The Commonwealth Powers Act of 1943 recites an agreement between representatives of the Commonwealth and State Governments and of the Oppositions in the Parliaments of the Commonwealth and the States that adequate powers to make laws in relation to post-war reconstruction should be referred to the Parliament of the Commonwealth by the Parliaments of the States and that such reference should be for a period ending at the expiration of five years after Australia ceased to be engaged in hostilities in the then present war. It was also agreed that it was desirable that the reference should not be revoked during that period. Australia ceased to be engaged in hostilities in the said war in September 1945, so that the period referred to in the recital (and in s. 4 of the Act) has not yet expired. Section 2 of the Act provides: "The following matters are hereby referred to the Parliament of the Commonwealth, that is to say," inter alia, "(f) Profiteering and prices (but not including prices or rates charged by State or semi-governmental or local governing bodies for goods or services." Other paragraphs refer to other subjects, e.g. employment and unemployment, organized marketing of commodities, uniform company legislation, trusts, combines and monopolies, air transport, family allowances, people of the aboriginal race &c. Section 3 provides that the Act shall not be repealed or amended except in the manner provided by the section. The section requires the approval of a majority of the electors voting on the question whether a bill for an Act should be approved or not. Section 4 provides that the reference shall continue in force for a period ending at the expiration of five years after Australia ceases to be engaged in hostilities in the war and that no law made by the Parliament of the Commonwealth with respect to matters referred to it by the Act shall continue to have any force or effect by virtue of the Act or the reference made by the Act after the expiration of that period.

The first objection to the 1948 Act based upon the 1943 Act is that the 1948 Act, providing for price fixing and the repression of profiteering, is an amendment of the 1943 Act and that it has not been enacted as provided by s. 3. There is no substance in this objection. The 1948 Act does not amend or repeal any provision of the 1943 Act.

Secondly, it is objected that by the 1943 Act the Parliament of Queensland, by referring to the Commonwealth Parliament the matter of profiteering and prices, transferred all power to legislate in respect of that matter in Queensland to the Commonwealth Parliament so that the Queensland Parliament deprived itself of that power. This contention raises the question of the meaning of s. 51 (xxxvii.) of the Commonwealth Constitution. Section 51 provides that: "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to" forty specified matters, including "(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law."

No objection is made on behalf of the appellants to the validity of the 1943 Act. The argument proceeded upon this basis, though the respondent was prepared to contend, if necessary, that the Act was not valid. Indeed, the argument of the appellants which is now under consideration depends upon the proposition that that Act is valid. It has sometimes been suggested that a reference under s. 51 (xxxvii.) must be an irrevocable reference for all time - that while the matter referred must necessarily be described by reference to its attributes or qualities, yet the reference cannot be limited by reference to a quality or attribute of a temporal character. Such a contention would involve the proposition that a State Parliament can pass an unrepealable statute, or at least that any attempt to repeal an Act referring a matter under s. 51 (xxxvii.) would necessarily produce no result. The result of the adoption of such a suggestion would be that one State Parliament could bind all subsequent Parliaments of that State by referring powers to the Commonwealth Parliament. It is unnecessary to consider this question in this case because the essence of the appellants' argument is that the 1943 Act is valid and that it deprived the Queensland Parliament of power to make laws with respect to the matter referred - as in the case of a transfer of property where, after the transfer has been made, the transferor has not, and the transferee has, the property which has been transferred. This analogy is not in my opinion applicable. Section 51 confers powers upon the Commonwealth Parliament to make laws with respect to the matters set forth in the section. These powers are not declared to be exclusive powers of the Commonwealth Parliament. Most of these powers can be exercised concurrently by the State Parliaments with the Commonwealth Parliament. Some of the powers, it is true, are, by reason of the nature of the subject matter, exclusive, for example - "(iv.) Borrowing money on the public credit of the Commonweath (xxx.) The relations of the Commonwealth (i.e. the Commonwealth as a whole) with the islands of the Pacific." But the terms of s. 51 do not exclusively vest in the Parliament of the Commonwealth or withdraw from the Parliament of a State any powers previously possessed by a State. Such powers as those to which reference has been made, e.g. borrowing on the public credit of the Commonwealth, are powers which did not exist before the creation of the Commonwealth and therefore were never powers possessed by the States. Section 107 of the Constitution provides as follows: - "Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be." Section 51 (xxxvii.) does not provide that any power of the Parliament of a colony which becomes a State should become exclusively vested in the Commonwealth Parliament or be withdrawn from the Parliament of the State. It is s. 52, and not s. 51, which gives exclusive powers to the Commonwealth Parliament. Therefore the powers of the State Parliament are not diminished when an Act is passed to refer a matter under s. 51 (xxxvii.).

When a State Parliament acts under s. 51 (xxxvii.) by referring a matter to the Commonwealth Parliament it produces the result of adding to the paragraphs of s. 51 a further paragraph specifying the matter referred. Thus if the matter referred is price fixing and that matter is referred by all the State Parliaments s. 51 may, in relation to that matter, be read as follows: - "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to (xxxvii.) Matters referred to the Parliament of the Commonwealth" &c. (as in par. (xxxvii.)) "namely price fixing, being a matter referred hereunder by the Parliaments of all the States." Thus the reference of matters under s. 51 (xxxvii.) does not deprive the State Parliament of any power. It results in the creation of an additional power in the Commonwealth Parliament. If the Commonwealth Parliament exercises such a power, s. 109 of the Constitution may become applicable, with the result that if a law of the State with respect to a matter referred was inconsistent with a law of the Commonwealth, the Commonwealth law would prevail and the State law to the extent of the inconsistency would be invalid. But unless the Commonwealth Parliament exercises the power to legislate with respect to the matter referred, no effect whatever is produced in relation to the operation of State laws. In the present case the orders made under Commonwealth legislation fixing prices (namely National Security (Prices) Regulations made under the National Security Act 1939 as amended) were terminated by the exercise of a power conferred upon a Minister by those regulations as from 20th September 1948. The Queensland legislation came into operation on that day, which was the day of assent to the Act of 1948 and there is no Commonwealth law with which it is inconsistent.

I am accordingly of opinion that the State Parliament did not by passing The Commonwealth Powers Act of 1943 deprive itself of power to make laws with respect to matters which are by that Act referred to the Commonwealth Parliament.

The grounds of the appeal raise the question whether the provisions of The Profiteering Prevention Act of 1948 under which the appellants were convicted are inconsistent with s. 92 of the Commonwealth Constitution. These provisions upon the true construction of their own terms apply to intra-State trade, and would apply to inter-State trade, if s. 92 is not an obstacle.

The evidence proves that the "offering for sale," which is the gist of the offence of which the appellants were convicted, had no relation to inter-State trade.

Section 2 of the Act subjects the Act to two rules of construction. One of the effects of s. 2 (1) is that every provision of the Act is to be read as if it were impliedly qualified by the words subject to s. 92 of the Commonwealth Constitution. The provisions of the State Act necessary to support the conviction are limited in their operation to intra-State trade, if they would deny to inter-State trade the freedom guaranteed by s. 92 (Vacuum Oil Co. Pty. Ltd. v. Queensland [No. 2] [1] ).

Section 2 (2) requires that any provision of the Act which extends beyond the limits of legislative power or exceeds any restriction on it, for example s. 92, should be construed to apply only to things within the scope of the provision with respect to which the Parliament has power to enact it. The result of the sub-section is that the provision is not to fail by reason of a presumption that the Parliament did not intend that the provision should have a partial operation if it could not validly have an operation as wide as its terms. It is therefore unnecessary to decide whether, if the provisions of the Act under which the appellants were convicted are given a literal construction, they strike further than s. 92 would allow. If they do so, the offering for sale, the subject of the charge, fell within the residual operation which sub-ss. (1) and (2) of s. 2 give to those provisions of the Act in relation to inter-State trade.

The grounds of the appeal also raise the question of the effect of The Commonwealth Powers Act of 1943 on the legislative power of Queensland. The question is whether the Queensland Parliament had power to pass The Profiteering Prevention Act of 1948 after it passed The Commonwealth Powers Act of 1943 and while that Act was in force. I assume but I do not decide that by this Act the Queensland Parliament duly referred the matters profiteering and prices, as described in s. 2, to the Commonwealth Parliament. The operation of the Act as a measure vesting legislative power in the Commonwealth depends upon s. 51 (xxxvii.) of the Commonwealth Constitution.

It is sought to meet the logical difficulty of saying that the Queensland Parliament retained these matters within its legislative power, although it had referred them to the Commonwealth Parliament, by placing upon the word "referred" in s. 51 (xxxvii.) and s. 2 of the Queensland Act the meaning "denominated." That may be a definition of the word but it does not seem to be a definition which completely expresses the meaning of "referred" in the present context. The Oxford Dictionary, vol. 8, says that the word "refer" may mean "To commit, submit, hand over (a question, cause or matter) to some special or ultimate authority for consideration, decision, execution" &c. I think that it is more probable that a verb selected from this definition would more correctly state the meaning of the word "referred" in s. 51 (xxxvii.) than the word "denominated." The question whether the sovereign rights of a State in respect of a matter which is duly referred, cease or are suspended during the period of the reference depends less on the meaning of the word "referred" than upon the intention manifested by s. 51 (xxxvii.) of the Constitution.

The effect of this provision is that a new power arises in the Commonwealth Parliament when a State Parliament refers a matter to it. It is a power to make laws for the peace, order and good government "of the Commonwealth." The power is subject to the restrictions imposed by the Constitution on legislative power and to the special conditions stated in s. 51 (xxxvii.). One special condition is that the operation of a law passed under the new power is confined to the referring State.

When The Commonwealth Powers Act came into operation, the Commonwealth Parliament then became vested with power, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to profiteering and prices and the other matters mentioned in the State Act, extending to Queensland. At the time the Queensland Parliament passed the Act, it had power to make laws with respect to profiteering and prices for the peace, order and good government of Queensland. This power was subject to any restrictions imposed by the Commonwealth Constitution upon State legislative power but not of course to restrictions thus imposed upon Commonwealth legislative power only. It was an exclusive power of the State in this respect namely that profiteering and prices are not matters expressly mentioned in s. 51 of the Constitution.

This power existed at the establishment of the Commonwealth. Section 107 of the Commonwealth Constitution preserves this power. The Queensland Parliament exerted the power when it passed The Profiteering Prevention Act. It is a power to make laws for the peace, order and good government of Queensland.

The Commonwealth Powers Act could not upon the terms of s. 51 (xxxvii.) cause any power to vest in the Commonwealth Parliament other than a power to make laws with respect to the referred matters for the peace, order and good government of the Commonwealth.

A power which is defined in these terms cannot be a State legislative power that has become vested in the Commonwealth. It is truly a Commonwealth power. It is subject to all the restrictions imposed by the Commonwealth Constitution upon the exercise of Commonwealth legislative power. It is a power concurrent with the power of the State to legislate with respect to the referred matters. It is not that power itself. Having regard to the terms of s. 51 (xxxvii.) and s. 107 it could not be that power.

The Commonwealth Powers Act 1943, if valid and effective according to its terms, could not operate as a transfer to the Commonwealth Parliament, or a suspension, of the legislative power of Queensland to pass The Profiteering Prevention Act of 1948. The objection to the conviction founded upon The Commonwealth Powers Act therefore fails.

I shall state briefly my reasons for agreeing that the appeal should be dismissed. There was, in my opinion, ample evidence to justify the magistrate holding that the appellants had offered the loaf of bread for sale at eightpence and therefore above the fixed price by their employee behind the counter with their authority offering the loaf for sale and selling it to Kelly at this price. The offer, the acceptance and the delivery of the bread all took place in the shop and therefore in Queensland, and there was no inter-State element whatever in the transaction. Section 2 (2) of The Profiteering Prevention Act of 1948 Q. expresses a clear intention on the part of the Queensland Parliament that the Act is to operate to the full extent to which it can operate consistently with the Constitution. Accordingly, the Act is intended to operate upon intra-State trade even if it infringes s. 92 of the Constitution in respect of trade and commerce among the States. I must not be taken to favour any assumption that the Act does this. But, assuming that it does, I have no doubt that the Act is operative with respect to intra-State trade.

There remains the question whether The Commonwealth Powers Act of 1943 Q. invalidates The Profiteering Prevention Act. Section 3 of the former Act provides the particular manner in which the Act may be repealed or amended. It was contended that the latter is an amendment of the former Act and that, the amendment not having been made in this manner, the latter Act is invalid. But The Profiteering Prevention Act does not amend The Commonwealth Powers Act. The Commonwealth Powers Act was passed to enable the Commonwealth Parliament to legislate on certain matters under s. 51, par. (xxxvii.) of the Constitution. The Profiteering Prevention Act does not attempt to repeal or amend this legislation. It leaves The Commonwealth Powers Act exactly as it was before and is merely legislation on the same subject as one of the matters, that is profiteering and prices, referred to the Commonwealth Parliament by The Commonwealth Powers Act.

The Profiteering Prevention Act could only be invalid, in the absence of inconsistent Commonwealth legislation within the meaning of s. 109 of the Constitution, of which there is none, if the effect of The Commonwealth Powers Act was to confer on the Commonwealth Parliament exclusive power to legislate for Queensland with respect to the referred matters.

The Commonwealth Powers Act purports to refer a number of matters to the Commonwealth Parliament for a term. The validity of such a reference was not argued because the parties and interveners were all interested in upholding the validity of the Act and on it I say nothing. Assuming that the Act is valid, the question is whether the Commonwealth Parliament acquires exclusive or concurrent powers of legislation over the matters referred. A more appropriate word than "referred" might perhaps have been chosen but it is significant that par. (xxxvii.) is included in s. 51 which confers concurrent and not exclusive legislative powers on the Commonwealth Parliament except in the case of certain powers which acquire exclusiveness from their subject matter and contents. There is no reason to suppose that the framers of the Constitution ever intended that legislation of the Commonwealth Parliament with respect to matters referred to it by a State Parliament should have a different operation in that State to its operation in a State which afterwards adopts the law. But it would seem to be clear that an adopting State would still retain all its previous powers of legislation and that the Commonwealth legislation adopted by the State would invalidate the legislation of that State only to the extent to which the two laws were inconsistent within the meaning of s. 109 of the Constitution. If the Commonwealth Parliament acquires an exclusive power of legislation for a State with respect to a matter referred to it by that State, the existing laws of the State on that matter might well become invalid because they no longer rested on any constitutional power, and they would at least become unalterable by the State during the reference whether the Commonwealth Parliament chose to legislate or not.

Section 106 of the Constitution provides that the Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth until altered in accordance with the Constitution of the State. If the reference of a matter to the Commonwealth Parliament under s. 51, par. (xxxvii.) of the Constitution effects an alteration in the Constitution of a State by depriving a State of power to legislate on that matter, it must do so by virtue of the words "subject to this Constitution" in s. 106, but the words of the paragraph appear to me to be no more than an authority for the Commonwealth Parliament to legislate on that matter and quite insufficient to effect such an alteration. Section 107 of the Constitution provides that every power of the Parliament of a State shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of a State, continue as at the establishment of the Commonwealth. The Constitution does not state expressly anywhere that a referred matter is to be exclusively vested in the Commonwealth Parliament nor does it state expressly that such a matter is to be withdrawn from the Parliament of a State, and again the words of the paragraph appear to me to be quite insufficient to raise a necessary implication to this effect.

In the light of ss. 106 and 107 of the Constitution, and the considerations already mentioned, I am of opinion that the Commonwealth Parliament only acquires a concurrent power of legislation over matters referred to it by the Parliament of a State and that the Queensland Parliament had power to enact The Profiteering Prevention Act.

I have had the opportunity of reading the judgment prepared by the Chief Justice and for the reasons he gives I think the order nisi should be discharged.

As to the meaning of matters referred in s. 51 (xxxvii.): I do not think that it is intended to give a State Parliament power to refer matters irrevocably to the Commonwealth Parliament to be exercised by that Parliament exclusively. The consequence of that would be that a State Parliament could completely deprive itself of any authority for all time, although the Commonwealth Parliament might decline to legislate with respect to all or any of the matters referred. I do not think it was intended that a State Parliament could bind its successors to that extent. If I held that it was not intended that a State Parliament could bind its successors to any extent that would be tantamount to holding that the Queensland Commonwealth Powers Act of 1943, referring matters for five years, was beyond power. As to this there was no submission or argument. Mr. Hudson for the respondent said he was prepared to argue that this Act was invalid, but he was not required to do so to support the magistrate's judgment. I leave undecided the question whether the Act of 1943 is beyond power.

As to the question whether matters are referred to the Commonwealth Parliament exclusively: when referred they become subjects of legislation by the Commonwealth under s. 51, which contains the concurrent powers, but not only the concurrent powers. If it were intended to confer exclusive power on the Commonwealth I think matters referred would be brought within s. 52, which confers exclusive power on the Commonwealth Parliament. It is difficult to form a satisfactory conclusion based merely on the consequences of holding either that the matters are referred exclusively or that they are not so referred. But if they are held not to be exclusively referred s. 109 resolves any resulting conflict between Commonwealth and State legislation.

In this case I have had the advantage of reading the judgment of the Chief Justice. I am inclined to take a different view of what constituted the "offering for sale" of the bread by the appellants. The point, however, is of no importance, because I am clearly of opinion that there was plain evidence of the commission of an offence under the Act. At all other points I find myself in complete agreement with the judgment of the Chief Justice, and I have nothing to add.