Mr. Cohen also told us that the eels which his firm exported were caught by means of netting in estuarine waters, rivers, creeks and lakes but not "in the sea proper". Eels, being a migratory species, cannot be bred in captivity.

The applicant submitted that to construe the reference to "live-stock" in the definition of "excluded goods" as including live eels would be contrary to Australia's export objectives and a frustration of the purpose of the Act. The intention, spirit and purpose of the Act were best served, so the applicant contended, by adopting the narrowest reasonable interpretation of the definition of "excluded goods" rather than the widest possible interpretation, which was the basis of the advice from the Attorney-General's Department on which the Board had ultimately acted.

Although the question thus presented for our decision appeared to involve no more than determining the proper construction to be applied to the word "live-stock" in the definition of "excluded goods", the matter is, unfortunately, more complex as a reference to the key provisions of the Act will disclose.

The way in which the Act pursues its stated objective of "providing incentives for the expansion of exports" is by conferring on a claimant the right to a grant under the Act if the Board determines that the claimant has an incentive grant entitlement (see s11). The amount of the grant is equal to the incentive grant entitlement of the claimant ascertained in accordance with s13 of the Act. The detail of these provisions does not need to be pursued for the purposes of the present application. Suffice it to say that, basically, the scheme provides for payment of grants based on increases in exports achieved by a claimant in a grant year over the average of exports in the immediately preceding three years (see ss 5, 6 & 7). In this respect it differs from the scheme established by the Export Market Development Grants Act 1974 (a scheme administered by the same Board) which provides incentives for (inter alia) the development of export markets by way of grants based on "eligible expenditure" (such as market research, advertising and other promotional expenditure) incurred by a claimant during a grant year (see ss 4, 12 and 15 of that Act).

However, before there can be an incentive grant entitlement under the Act, there must be export earnings derived from the export of eligible goods, eligible services, eligible industrial property rights, eligible know-how or eligible internal services, all of which expressions are defined in s3(1) of the Act. For present purposes we are only concerned with the definition of "eligible goods", which has the meaning given by s 4 of the Act. That section provides as follows:-

"(1) A reference in this Act to eligible goods shall be read as a reference to goods (other than excluded goods, goods referred to in subsection (2) or goods that are not to be taken to be eligible goods by virtue of a regulation under subsection 22(3)) that, in the opinion of the Board, have been manufactured, produced, assembled or processed in Australia, where -

(a)

not more than 50 per centum of the value of the goods is attributable to materials or parts not of Australian origin; or

(b)

more than 50 per centum of the value of the goods is so attributable, but the Board is satisfied that the goods should be treated as substantially of Australian origin.

(2) For the purposes of subsection (1), where meat is exported to the United States of America or Canada by virtue of a quota allocated under a scheme prepared by the Australian Meat and Live-Stock Corporation, that meat shall not be taken to be eligible goods."

The definition of "excluded goods" is also relevant and needs to be set out in full:-

"3 (1) In this Act, unless the contrary intention appears -..."excluded goods" means -

(a)

minerals;

(b)

shorn wool in the grease:

(c)

bulk wheat, including bagged wheat;

(d)

sugar in any of its recognised commercial forms derived from sugar cane or sugar beet;

(e)

live-stock;

(f)

waste and scrap materials; and

(g)

goods that are excluded goods by virtue of regulations under subsection 22(2)."

It may be noted that although there are some goods excluded by regulation, none of the goods so excluded have relevance to the question before us.

The applicant contends that they are claimants under s11 of the Act and have an incentive grant entitlement in consequence of their export of live eels during the year ended 30 June 1978. However such entitlement can only result from a right to have the live eels classified as "eligible goods" under s4 of the Act and not expressly excluded from such class under other provisions of the legislation. "Eligible Goods" has by virtue of s3(1) the meaning given by s4 of the Act.

The question in the first instance is whether live eels are goods. Because this is a matter of construction the approach of Lord Parmoor in William Warner's Sons & Company v Midland Railway [1918] AC 616 is in point. His Lordship was considering whether frozen salmon should be classified as "Preserves (fish, fruit meat and provisions) in casks, boxes or cases" or as "fresh

fish" or should be unclassified. At page 622 he said:

"In considering the construction of the classification the words used should be given their ordinary normal meaning, having regard to the context in which they occur, and to the general purpose of the classification considered as a whole."

It was not suggested before us that the word "goods" should be given anything other than its ordinary normal meaning. In this case the dictionary meaning of "goods" as "moveable property, merchandise and wares" is the meaning to apply. Such a meaning might seem to be an extremely inapposite description of live eels. However in The Noordam (No. 2) [1920] AC 904 Lord Sumner in deciding whether security documents were "goods" for the purpose of a Reprisals Order in Council said at pp.908-9:

"At first sight the word "goods" might seem to be an equally inappropriate description. It must, however, be observed that the word is of very general and quite indefinite import, and primarily derives its meaning from the context in which it is used...

Their Lordships are of opinion that the cardinal consideration in interpreting the Order in Council is the character and scope of the Order itself. The content of the word "goods" differs greatly according to the context in which it is found and the instrument in which it occurs. In a will or in a policy of marine insurance in the marriage service or in a schedule of railway rates, in the title of a probate action or in an enactment relating to the rights of an execution creditor, the word may sometimes be of the narrowest and sometimes of the widest scope. The question is what is its content here."

The decision in that case was that by virtue of the context the security documents were "goods".

Before turning to the present context, it is perhaps surprising, that the legislature did not see fit to define the word "goods". The Trade Practices Act 1974 has a definition of the word and although it does not advance at all the present matter, it is of interest, if not of some significance, as indicating the work the word is frequently required to do. In s 4 of that Act, "goods" includes -

(c) minerals, trees and crops, whether on, under or attached to land or not: and

Turning to the context for the purpose of determining whether the content of the word is here to extend beyond the dictionary meaning, s4 of the Act gives some preliminary indications. The fact that the goods under consideration are contemplated in that section as having been "manufactured, produced, assembled or processed in Australia" is consistent with and indeed confirmatory of the view that the goods referred to are limited to moveable property in the nature of wares or merchandise. Goods such as are produced by secondary industry in Australia would appear to comprise "eligible goods". This tentative view receives support from the provision that such goods are only entitled to be considered as "eligible goods" if not more than 50 per centum of the value of the goods is attributable to material or parts of ex-Australian origin. Living creatures generally and live eels in particular are certainly not "manufactured, assembled or processed" in Australia though it is possible to conceive them as "produced" here. It is however difficult to conceive a live eel as containing material or parts of ex-Australian origin. Thus far all indications are that the word "goods" is used in its narrower meaning; and that living creatures are not "eligible goods".

The first hint that the legislature had in mind a wider meaning is to be found in s4(2), supra, where consideration is given to meat exported under a specified scheme. Such meat the legislature found it necessary to have expressly excluded from the class of eligible goods. Whilst meat for export is doubtless produced or processed in Australia, it is difficult to conceive it as having other than 100% Australian content.

It is when consideration is given to the classes of goods which are by s4(1) expressly excluded from eligible goods that there is found a definite indication that a much wider meaning than the dictionary meaning is intended. In particular the class of goods covered by the definition of "excluded goods" goes well beyond moveable property, merchandise or wares. The definition clause provides that "excluded goods" means:

(b)

shorn wool in the grease;

(c)

bulk wheat, including bagged wheat;

(d) sugar in any of its recognised commercial forms derived from sugar cane or sugar beet;

(e)

live-stock;

(f)

waste and scrap materials; and

(g) goods that are excluded goods by virtue of regulations under subsection 22(2)."

These articles comprise a very mixed group, almost all of which would not normally fall within the dictionary meaning of goods, and only to a very limited degree can they be described as the products of secondary industry. In fact if one was to attempt to determine to what homogeneous class they belong, the most appropriate conclusion might be that they comprise a class consisting of the most flourishing and profitable primary industry products which are well established as Australia's principal exports. Apart from this they have little in common with each other.

Thus it is very apparent that the range of goods expressly excluded by the Act from the class of "goods" as understood in its dictionary meaning far exceeds that class. In other words the exception to the class is wider than and extends beyond the class itself. An ambiguity therefore arises upon this very clear indication that the meaning of "goods" extends beyond the dictionary meaning. It follows that it is necessary to determine what wider meaning coincides with the context supplied by the legislation.

The long title of the Act is that it is "an Act relating to grants for the purpose of providing incentives for the expansion of exports". It is noteworthy that it is exports generally and not any particular class of exports which are to be encouraged. In addition to eligible goods, the exporters of eligible services, eligible industrial property rights, eligible know-how and eligible internal services are entitled to incentive grants. Each of these latter four categories comprises exports of other than physical articles but all of the five classes consist of items which are capable of being exported i.e. taken or sent out of Australia. The expression "eligible goods" will cover all those physical articles which the legislature had in mind being carried or taken overseas, which carriage or taking it desires to encourage. Such carriage or taking will in the ordinary course be by ship or air transport.

The word "goods" has been given an expanded meaning in the context of carriage by ship. It is used in s23 of the Merchant Shipping Act of the United Kingdom in the phrase "timber stores or other goods", which was considered by the Court of Appeal in Richmond Hill Steamship Company v Corporation of The Trinity House [1896] 2 QB 134. The court at p 137 declined to apply the eiusdem generis principle of construction and said that "other goods" must have their natural meaning, namely "deck cargo". Horses and cattle were there under consideration and the court found that they were goods as well as "anything else that may be carried as cargo on deck". In the context of carriage by ship, there is much justification for a finding that goods are cargo, especially cargo capable of being carried on deck.

In another context a dog was determined to be included in the word "goods"; R v Slade (1888) 21 QBD 433.

Thus accepting that "goods" extends beyond merchandise and wares, it is appropriate in the context of an Act dealing with the transportation of articles from Australia to equate goods with cargo, both animate and inanimate.

There are a number of matters which are confirmatory of this conclusion. The Act has in mind the encouragement of exports generally, and not a limited class such as the products of secondary industry. It is in the nature of bounty legislation and being for the purpose of encouraging an activity should be widely construed. The word "goods" as meaning physical cargo contrasts well with the other classes of exports, namely know-how and services and there is no over-lapping.

Having arrived at the conclusion that live eels are goods, it becomes necessary to determine whether they fall within the definition of "eligible goods", that is whether they fulfill the remaining requirements of s4(1). This subsection particularly requires that the goods,

"...in the opinion of the Board have been manufactured produced, assembled or processed in Australia, where -

(a) not more than 50 per centum of the value of the goods is attributable to materials or parts not of Australian origin; or

(b) more than 50 per centum of the value of the goods is so attributable, but the Board is satisfied that the goods should be treated as substantially of Australian origin."

Thus, to be eligible, goods must at least, in the opinion of the Board, have been "manufactured, produced, assembled or processed in Australia". This is an understandable requirement as it would clearly be inappropriate to grant entitlement to a person who imports goods and then exports them in their imported state. It can be conceded that the words "manufactured, assembled or processed in Australia" are not easily applied to animals, though it is possible to say that they have been "produced" in Australia. Moreover prior to export and for the purpose thereof, goods may frequently have in some way been "processed". Such might well have been the case here, though there was no evidence and no submission on this score. In our opinion a finding is open that live eels were produced in Australia, and should be made. Thus this first requirement is satisfied.

The section continues with the requirement that not more than 50% of the value of the goods should be attributable to materials or parts of ex-Australian origin. Can live eels comply with this requirement, if compliance be necessary? It is not easy to accept live eels, or any other animals, as having "materials or parts". However in our opinion, though not without hesitation, it is not proper to see this requirement as having general application and as limiting "eligible goods" to goods which are comprised of materials or parts, some of which materials or parts are capable of being of ex-Australian origin. The consequence of so reading this as a general requirement would be to exclude from the class of eligible goods at least the majority of the articles expressly referred to in the definition of excluded goods. In our opinion, this portion of the section does not control generally the interpretation of the words "eligible goods", but rather provides that in circumstances where the goods to be exported comprise materials or parts of ex-Australian origin, the value of such materials or parts shall not exceed 50% of the value of the goods. In our opinion this requirement has no application to live eels, which are thus eligible goods.

Thus in our opinion, exporters of live eels are entitled to a grant unless the eels come within one of the categories specified by the bracketed words in s4(1). It was conceded that it is only necessary for us on this occasion to determine whether they fall within the definition of excluded goods i.e. as "live-stock".

Subsection 22(2) referred to in the definition of "excluded goods" set out above empowers the addition of further categories of goods in that regulations may be made declaring that goods of a specified kind are excluded goods. On the other hand subsection 22(3), to which s4(1) expressly refers, enables regulations to be made declaring that specified goods exported to a particular country or in particular circumstances shall not be taken to be eligible goods. Thus in addition to those goods specifically excluded from the class of eligible goods by the definition of "excluded goods", the Governor-General is enabled by s 22(2) to exclude further classes of goods, and to deny eligibility to goods otherwise entitled if exported to a specified country or in particular circumstances. The fact that conversely there is no power by regulation to add further goods to those referred to in s4(1) tends to support the view that the expression "eligible goods" is intended to have the widest possible meaning.

Live eels, if they are to be excluded otherwise than by regulation under subsection 22(2), can only be excluded as "livestock" under (e) above. Both parties presented detailed submissions to us on the appropriate meaning to attach in the circumstances to this word. Neither party submitted that it was to be construed in other than its popular or ordinary meaning, and no argument or evidence was tendered in respect of a technical or commercial meaning. It is a question of fact as to what is its ordinary or popular meaning, but a question of law whether live-stock should in this Act be construed as including live eels.

The word "live-stock" is a word capable of a wide or narrow meaning and the appropriate meaning is to be determined by the context. Dictionaries appear generally to attribute to the word the narrow meaning, and in so far as live-stock are equated with animals, there are invariably some qualifications attached. "Live-stock" are described as animals kept or dealt in for use or profit; domestic animals generally, any animals kept or dealt in for use or profit; domestic animals used or raised on a farm, especially those kept for profit. In so far as it is not unknown to use the expression "live or dead stock", the dictionary meaning of "stock", namely "a collective term for animals employed in the working of a farm; a collective term for horses, cattle and sheep bred for use or profit" coincides with the meaning attached to live-stock.

"Animals" on the other hand is a word, the ordinary meaning of which is much wider. It describes, according to the dictionaries, living beings endowed with sensation and voluntary motion, and in Halsbury Laws of England 3rd edit. Vol. 1 p 655 as including all beasts, birds, reptiles, fishes and insects, and in the 4th edit, p.85 as all creatures not belonging to the human race.

The courts appear generally to have accepted the fact that the dictionary meaning of "live-stock", being a meaning narrower than that attached to the word "animals", is the ordinary or proper meaning and the meaning prima facie to be attached to the words unless the context requires otherwise. In Deputy Commissioner of Taxation (N.S.W.) v Zest Manufacturing Co. Pty. Ltd. [1949] HCA 61; (1949) 79 CLR 166 the High Court considered whether fish bred for sale or for stocking rivers were "live-stock" for the purposes of SalesTax Legislation. Rich J at p172 said that "In ordinary parlance live-stock would not include poultry, bees or fish". At p173 Dixon J (as he then was) said:

"It does not strike me as in accordance with ordinary English usage to apply the word to fish: though perhaps there is not much reason why the expression should not be extended to include fish, if the context and subject matter suggested it. In my opinion, however, the context is quite opposed to assigning to the word "live-stock" a meaning wide enough to include fish,"

McTiernan J at p.173 attached significance to the fact that the fish in question were being bred for sale and not caught in the sea or rivers, and he said:

"Fish kept and bred in hatcheries for the purposes of sale may fit some definitions of live-stock in dictionaries: because a fish is an animal and some of the definitions possibly include animals of any kind kept by man for any purpose. The question in the present case, however, is whether the word 'live-stock' ... is used in such a general sense."

Each of the members of the court turned ultimately to the context for the purpose of determining the meaning properly to attach, whether it was the narrower or wider meaning.

A similar approach was adopted by members of the Court of Session in Commissioners of Inland Revenue v City of Glasgow Ornithological Association (1938) 21 TC 445 where the question was whether cage birds were live-stock. The Lord President acknowledged at p.447 that "the whole point in the case concerns the meaning of the word 'live-stock'. I think that, while in the ordinary use of language one might not think of cage birds as live-stock, that is not decisive of the present case...".

"Had we been here concerned with the ordinary meaning of the word 'live-stock' I could not have seen my way to apply that term as including cage birds. We are, however, in my view, interpreting a term which may be regarded as forming part of a statutory code which itself contains a definition of the term."

In Earl of Normanton v Giles and Another [l980] 1 All ER 106 at p113 Viscount Dilhorne said:

"'Livestock' was contrasted by Lawrence J. with 'dead stock' and he did not have to deal with a definition of agriculture which included livestock ... In my view the word 'livestock' is usually used to cover all forms of stock found on farms in the course of farming."

American authorities and text books coincide in adopting a similar meaning as the ordinary meaning of the word. Fish have been held not to be live-stock for the purposes of the farmer-debtor provisions of the Bankruptcy Act. Live-stock has been defined as domestic animals used or raised on a farm, especially those kept for profit, and as domestic quadrupeds which service for tillage or other labour, or as a food for man. In the American Law Institute's Restatement of the Law under the subject heading of Torts, the word is used to denote "those kinds of domestic animals and fowls which are normally susceptible of confinement within boundaries without seriously impairing their utility and the intrusion of which upon the land of others normally causes harm to the land or to crops thereon".

Thus it would appear proper to describe live-stock as domesticated animals used by man unless the context requires a wider meaning. In the present instance we are of opinion that there is insufficient, if there is anything, in the context to displace the ordinary or dictionary meaning.

There is certainly little, if any, assistance to be obtained from the definition of "excluded goods". The articles there set out are an ill-assorted group, the choice of which appears to have been dictated by policy considerations, rather than as comprising a homogeneous class. Moreover the use of the extremely wide word "minerals", itself the subject of expansion of meaning by definition, contrasts with the articles from primary industry namely, wool in a certain form, wheat but no other cereal crop, and sugar in so far as it is derived from cane or beet. There is nothing in this definition which persuades the acceptance of other than the dictionary meaning of live-stock. The fact that the legislature has not used a word or words such as "animals" or "living creatures" leads to the view that only a limited class of animals are directed to be excluded from the class of eligible goods.

Once a conclusion has been reached that the goods eligible for incentive payments are, to accord with the purposes and scope of the legislation, to be given a wide construction, there is every reason to expect those excluded to be specified with certainty. A decision which has the effect of expanding the classes of goods which are excluded from the benefits of the legislation is not warranted.

In our opinion the decision of the Board that live eels are livestock and thus excluded goods for the purposes of the Act should be set aside and the matter remitted to the Board for reconsideration in accordance with a direction that live eels are eligible goods for the purposes of the Act.

I certify that the documents annexed hereto and marked "Decision" (being a single page) and "Reasons for Decision" (being 17 pages) are a true copy of the decision and reasons for decision of

handed down in MELBOURNE on 8th day of August Date:

REASONS FOR DECISION - MR A.N. HALL (SENIOR MEMBER)

As the relevant facts in this matter are fully set out in the joint majority decision and as the only points of difference between the majority view and my own view are concerned with the correct interpretation of s4 of the Export Expansion Grants Act 1978 ("the Act") and the meaning of the word "live-stock" in the definition of "excluded goods", I do not think that it is necessary for me to do more than indicate that, with respect, I adopt the statement of facts in the joint decision for the purposes of my reasons for decision. The relevant sections of the Act are also fully set forth in the joint decision.

In my view, the question which the Tribunal must resolve in this application for review is not merely, as the applicant suggested, whether live eels are "live-stock" which fall within the definition of "excluded goods" but, more fundamentally, as the Board submitted, whether live eels are "eligible goods".

Although s 4 (1), defines "eligible goods" for the purposes of the Act, Parliament has chosen not to define the word "goods" as used in that section. As was said by the Privy Council in The Noordam (No. 2) (1920) AC 904 at 908 the word is "of very general and quite indefinite import and primarily derives its meaning from the context in which it is used.": cf. Falconer v Pederson [1974] VicRp 24; (1974) VR 185 at 187.

Despite the fact that the ordinary meaning of the word "goods" would, in my view, accord with the meaning given in the Oxford English Dictionary, namely "saleable commodities, merchandise, wares (now chiefly applied to manufactured articles)"; the word is undoubtedly capable, in an appropriate context, of embracing within its ambit live animals; see Richmond Hill S.S. Co. v Corporation of Trinity House (1896) 2 QB 134; R v Slade (1888) 21 QBD 433; Elsworth v Commissioner for Stamps (1920) 20 SR (NSW) 305. Perhaps the most apposite example of the word being used by Parliament in that broadest sense is to be found in the Customs Act 1901 which defines "goods" as including "all kinds of moveable personal property" (see s 4 (1)). The word has the same meaning in the Customs Tariff 1966 (see s 5 of that Act) by force of which duties of Customs are imposed on "goods" imported into Australia (s15). As the classification of "goods" adopted in the First Schedule to the Tariff Act is based on the Brussels Nomenclature (see the Convention on Nomenclature for the Classification of Goods in Customs Tariffs signed in Brussels on 15 December, 1950) it is clear that, in that context, "goods" is intended to cover all things animate and inanimate which are capable of being imported into the country.

Whilst comparison of enactments can be a dangerous and misleading pastime, there is much to be said for the view, nevertheless, that in an Act dealing with incentives for the expansion of exports, Parliament is likely to have used the word "goods" in the same broad sense. Indeed there are some indications within the Act to support this conclusion. In particular, the express inclusion of "live-stock" as part of the definition of "excluded goods", suggests that the animals included within that expression would otherwise have been "goods" for the purposes of the Act. The long title of the Act refers, quite generally, to "exports" and, whilst there is power by regulation to add to the class of "excluded goods" (see s 22 (3)), there is no power to add to the category of "goods" which may qualify as "eligible goods".

But these considerations, persuasive as they are, do not necessarily advance the applicant's case, because it is obvious from a reading of section 4 as a whole that not all "goods" exported from Australia will qualify as "eligible goods". Unless exported "goods" can fairly be seen to meet the remaining requirements of the section, the fact that they may be "goods" in the broadest sense of that word is of no avail. Thus, accepting that "goods" is a word capable of embracing all things animate and inanimate which may be exported from the country, the question remains whether live eels come within the language of s 4 (1).

Consideration of the scheme of that sub-section is informative. From the range of "goods" which may be treated as "eligible goods", there is excluded, at the threshold as it were, the goods defined as "excluded goods". Thus "live-stock", certain specified products of primary production, "waste and scrap materials", plus goods excluded by regulation are precluded by Parliament's injunction from being treated as "eligible goods". "Goods", other than those specifically excluded, will be treated as "eligible goods" if, and only if in the opinion of the Board, they are "goods" "that have been "manufactured, produced, assembled or processed in Australia, where -

"(a) not more than 50 per centum of the value of the goods is attributable to materials or parts not of Australian origin; or

(c)

more than 50 per centum of the value of the goods is so attributable, but the Board is satisfied that the goods should be treated as substantially of Australian origin."

Because the word "live-stock" is a chameleon-like expression taking shades of meaning from its context (see and compare Deputy Commissioner of Taxation (NSW) v Zest Manufacturing Co Pty Ltd [1949] HCA 61; (1949) 79 CLR 166; Halliday v Hornsby Shire Council (1979) 1 NSWLR 391; Minister of Agriculture, Fisheries and Food v Appleton (1970) 1 QB 221 and Earl of Normanton v Giles (1980) 1 All ER 106), and because the definition of "excluded goods" itself adds little contextual colour to the meaning of the word, I think that the relevant context is to be found in s 4 (1) itself.

Reading that section as a whole, the language which Parliament has chosen to use is, to my mind, incompatible with the section having any application to live animals (whether "live-stock" or not) (cf. Dixon J. in Federal Commissioner of Taxation v Rochester [1934] HCA 17; (1934) 50 CLR 225 at 227). Clearly, live animals are not "manufactured"or "assembled". By definition, "processed", in relation to goods does not include "graded, packed or sorted" (see s 3(1)). Mr Cohen, for the applicant, attempted to suggest that the eels were "processed" because they were placed in specially developed tanks for transportation purposes. But there is no evidence before the Tribunal that the live eels as exported are one whit different from the live eels which were caught in estuaries. There may be a process developed for their export but the eels as "goods" have not themselves been processed. On the evidence, the most that happens to the live eels after they are caught is a sophisticated form of "packing".

Whilst the eels may arguably be "produced" by being caught (an argument of greater force if they had been produced on a fish farm cf. Mitchell v Curlewis (1893) 15 ALT 153), I fail to see how one can sensibly answer the question posed by s 4 (1) (a), namely whether a "live eel" (or any other live animal for that matter) has "not more than 50% of its value attributable to materials or parts not of Australian origin". I do not think one can escape from the difficulties of that question by-retreating to s 4 (1) (b) as that sub-paragraph only applies if the Board is of the opinion that more than 50% of the value of the "goods" is not so attributable. Moreover, the alternative issues posed for the Board's consideration in sub-paragraphs (a) and (b) of s 4 (1), predicate that "eligible goods" will have "materials or parts" the origin of which can be ascertained.

It may be that, in some contexts, it would not be inappropriate to refer to living creatures as composed of "materials" or more especially, of "parts". But the notion of a live eel being valued by reference to the "materials or parts" of which it consists and the problems of determining the origin of those "materials or parts" in relation to a migratory species like eels are such as to cause me to conclude that those words are incapable of being applied, in the context, to a live eel. It is, in my view, such an odd and inappropriate test for Parliament to pose if the section was intended to apply to such "goods" that I gain the overwhelming impression on reading s 4 (1) that Parliament did not contemplate that living animals should be treated as "eligible goods".

This view is reinforced by my conclusion as to the proper meaning of "live-stock" in the context of the Act. I would not doubt that, in ordinary parlance, its most commonly understood meaning would be "domestic animals generally": cf. Earl of Normanton v Giles - supra at 113 per Viscount Dilhorne. This is the first meaning attributed to the word in the Oxford English Dictionary and in the context of legislation relating to agriculture, the word is apt to be construed accordingly. As I understand the opinions of those Justices who constituted the majority in the Zest Manufacturing Case - supra (Rich, Dixon, McTieman, Williams and Webb JJ), their Honours found within the Schedule of Sales Tax Exemption Items which referred to "foods for live-stock", a clear indication that the word "live-stock", in that context, was inappropriate to apply to fish bred in hatcheries. Within the relevant portion of the Schedule, the references to "horses, cattle, sheep and pigs" and to the implements of animal husbandry, coloured and, as it turned out, narrowed the meaning of the ward. All the Justices acknowledged the latent ambiguity of the word, which the Oxford English Dictionary itself exhibited in the second meaning attributed to the word namely "animals of any kind kept or dealt in for use or profit".

"It does not strike me as in accordance with ordinary English usage to apply the word to fish; though perhaps there is not much reason why the expression should not be extended to include fish, if the context and subject matter suggested it."

But as his Honour went on to observe, the context within the Schedule of Exemptions was "anything but acquatic or ichthyo-logical". To similar effect were the following comments of McTiernan J. on the same page:-

"Fish kept and bred in hatcheries for the purposes of sale may fit some definitions of livestock in dictionaries; because a fish is an animal and some of the definitions possibly include animals of any kind kept by man for any purpose."

However, on p174 his Honour also concluded that, in the context, the word "live-stock" was not wide enough to include fish.

In Belmont Farm Ltd v Minister of Housing and Local Government (1962) 60 LGR 319, Lord Parker C.J. pursued the same theme in the following passage from his judgment at 322:-

"Of course, on one view "livestock" can be said to be used in contradiction to dead stock, and to include any animal whatsoever. In some contexts that might be so, but it seems to me that in the context of agriculture, as here, it has some less extensive meaning."

The nature of the Act now under consideration and the context within which the word "live-stock" is used is, in my view, clearly distinguishable from all of the cases cited to the Tribunal. Whilst the views expressed in these cases are most instructive, they do not control the meaning to be applied to the word "live-stock" in the present Act.

Lest it may be thought that I have overlooked the matter, I should also add that I do not derive any assistance from the arguments which the applicant advanced, based on the separate classification within the Australian Export Commodity Classification of "live animals chiefly for food" (group 001) and "fish, fresh (live or dead), chilled or frozen" (group 034). These classifications, which we were told were based on the Brussels Nomenclature, are drawn from a quite different context and there is nothing to suggest that Parliament had those classifications in mind when excluding "live-stock" from the benefits of the export expansion grants scheme.

The Export Expansion Grants Act 1978 is concerned with exports generally, not agriculture. Insofar as it has any possible application to living animals, it applies only where those animals constitute the "goods" from which export earnings are derived. That being so, I can see no reason within the Act for differentiating between live animals which have been bred in captivity (and which come within the narrowest meaning of "live-stock") and any other living animals, whether bred in captivity or caught in the wild, which have become the stock of an export business. Animals ferae naturae become the property of the person who takes them, until they regain their natural liberty (see Halsbury's Laws of England, 4th Edn. Vol. 2 para 206 p 86). In my view, there is no reason why wild animals such as eels which have been harvested from estuarine waters, rivers, creeks and lakes for the purposes of export cannot be said to fall within the wider meaning of "live-stock" as "animals of any kind ... dealt in.. for profit".

As that broader meaning is, in my view, entirely compatible with the construction of s 4 (1) which precludes the application of that section to exports of living animals, it is the meaning which I think must be given to the word "live-stock" in the context of the present Act. In the result, the reference to "live-stock" should be seen as having been included in the definition of "excluded goods" ex abundanti cautela in order to remove any doubt as to Parliament's intention that the export of living animals was not within the purview of the Act: cf. Craies on Statute Law 7th Edn. p 215.

For these reasons I would affirm the Board's decision that live eels, being "live-stock",are "excluded goods" for the purposes of the Act and as such are incapable of being treated as "eligible goods".