J Bernard & Co Pty Ltd v Langley

[1980] HCA 39

High Court of Australia|1979-08-01|Before: Wilson JJ

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Court

High Court of Australia

Decision date

1979-08-01

Before

Wilson JJ

Source

Original judgment source is linked above.

Judgment (57 paragraphs)

[1]

High Court of Australia Gibbs A.C.J. Stephen, Mason, Murphy, Aickin and Wilson JJ. J Bernard & Co Pty Ltd v Langley [1980] HCA 39

[2]

The plaintiff, a company which carries on business in Victoria as a meat wholesaler, has brought the present action in this Court against the defendants, who are respectively a meat inspector appointed pursuant to the Meat Industry Act 1978 N.S.W., as amended, ("the Act") and the New South Wales Meat Industry Authority constituted under the Act ("the Authority"). The plaintiff has delivered a statement of claim to which the defendants have demurred, and we have heard argument on the demurrer. The material allegations in the statement of claim, which for the purpose of the argument must be taken to be correct, are as follows. The plaintiff, in the course of carrying on its business, bought meat, whether slaughtered in or out of Victoria, and sold such meat both inside and outside Victoria. On or about 1 August 1979 the plaintiff entered into an agreement to sell certain meat to J. C. Huttons Ltd. ("Huttons"), a smallgoods manufacturer which carried on business in New South Wales. It was a term of the agreement that the plaintiff would deliver the meat from premises in Victoria to the premises of Huttons at Canterbury in New South Wales. The plaintiff purchased the meat in Victoria and caused it to be transported by truck from Victoria to the premises of Huttons at Canterbury. It does not appear where the meat had been slaughtered. The meat was brought into New South Wales for human consumption. On or shortly after the arrival of the meat at Huttons the first defendant inspected and seized the meat, and caused it to be tagged for identification and placed in cold storage under the control of the Authority. The seizure was made in intended exercise of the powers conferred by s. 29 of the Act, in that the first defendant alleged that he found or reasonably suspected that the meat had been or was being dealt with contrary to the Act in the following respects - (a) that it was brought into New South Wales unaccompanied by the certificate prescribed by reg. 14 of the Meat Inspection and Stamping Regulations 1978 N.S.W., as amended, ("the Regulations") and therefore contrary to s. 43 of the Act; (b) that it was brought into New South Wales without a notice having been given in the form prescribed by reg. 15 of the Regulations; and (c) that it was offered for sale for human consumption contrary to s. 41(1)(b) of the Act. The defendants allege that the meat at the time it was brought into New South Wales was unfit for human consumption. The plaintiff has requested the Authority to return the meat to it but the defendant has refused to do so. The plaintiff has complained of the seizure to a justice of the peace in accordance with the procedure prescribed by s. 29 of the Act and the hearing of the complaint has been adjourned pending the determination of the present proceedings. The plaintiff asserts that the seizure of the meat by the first defendant, and the refusal of the Authority to return the meat, were unlawful, because s. 92 of the Constitution has the effect that ss. 29 and 43 of the Act are either void or inapplicable to the meat in question, and that reg. 15 of the Regulations is void. It claims declarations, damages and costs.

[4]

Where a meat inspector suspects on reasonable grounds that there is in or on any unlicensed premises or unlicensed vehicle any meat that is intended for sale, he may perform his functions under this Act in relation to the premises or vehicle and the meat as if the premises or vehicle were licensed premises or a licensed vehicle. By s. 21(1), a meat inspector may, at any abattoir or slaughter-house, give such directions as he thinks proper with respect to the slaughtering procedures at the abattoir or slaughter-house, including directions for the hygienic and humane management and operation of the abattoir or slaughter-house. The combined effect of the various sub-sections of s. 22 is that a meat inspector shall inspect the carcase of any animal slaughtered at an abattoir or slaughter-house, and shall, if he is satisfied that the carcase or any part of the carcase is fit for human consumption, pass the carcase or part of the carcase as fit for human consumption. If a meat inspector suspects on reasonable grounds that (inter alia) any meat on licensed premises or a licensed vehicle is unfit for human consumption, he may require it to be submitted for inspection, notwithstanding that it has been previously inspected (s. 25). Under s. 26, a meat inspector may, inter alia, condemn, as unfit for human consumption (inter alia) any meat in or on any licensed premises or vehicle, and may seize the meat condemned and cause it to be destroyed or otherwise disposed of. Anything so seized "shall become the absolute property of the Crown, and the Minister may, if he thinks fit, pay to the owner thereof such amount in respect thereof as he may determine" (s. 26(5)). On behalf of the plaintiff it was submitted that the effect of s. 20(2) is that a meat inspector may condemn meat which is in or on any premises or vehicle, whether licensed or not, provided that the inspector suspects on reasonable grounds that the meat is intended for sale, and this appears to be correct, although it is unnecessary to decide the point. Sub-sections (1), (2) and (3) of s. 29, so far as they are material, provide as follows:

[28]

Before dealing with those particular criticisms of the legislation, it is convenient to consider its general character. The provisions of s. 42 strike at an essential feature of an interstate transaction - the bringing of meat over the border into the State. However, those provisions do not prohibit such transactions; they prescribe rules according to which trade of that kind should be conducted. Moreover, although s. 43, unlike s. 26, does not expressly refer to meat which is unfit for human consumption, it can be inferred that its provisions are enacted for the purpose of ensuring the maintenance of proper standards in the interest of public health. Meat is of course a commodity which is susceptible to contamination and prone to deterioration. To require that meat intended for human consumption shall come from an animal which has been slaughtered under hygienic conditions, and that the meat itself shall be fit for human consumption, is to do no more than regulate, in a reasonable way, the manner in which persons engaging in the meat trade shall carry out their activities. On the facts as pleaded it is impossible to conclude that s. 43(1) has any wider operation than this. Regulation 14, which prescribes the manner of inspection and the form of the certificate for the purposes of s. 43(1), reveals throughout its provisions a concern with hygiene and health. The application of sub-s. (4) of s. 43 is not restricted to meat intended for human consumption, since the Act generally deals also with meat intended for use as animal food, but in its operation in relation to meat intended for human consumption sub-s. (4) provides a means of ensuring that the meat can be checked for fitness and quality by an agency of the State in which it is likely to be used. Regulation 15 appears designed to enable the provisions of s. 43(4) to be made effective, by giving warning of the intended movement of the meat and by enabling arrangements to be made for its inspection. Nothing is pleaded to suggest that the necessity to give twenty-four hours' notice renders interstate trade in meat practically impossible or unreasonably burdensome. Subject to the particular criticisms advanced on behalf of the plaintiff, to which it is now necessary to return, it is clear that those provisions are regulatory in character within the principles recently discussed in Permewan Wright Consolidated Pty. Ltd. v. Trewhitt [3] , and do not detract from the freedom guaranteed by s. 92.

[29]

The fact that s. 26 provides one way of regulating the trade in meat in the interests of the public does not mean that it is unreasonable to adopt other means in addition. It is well within the range of a reasonable discretion to consider that for the proper protection of the public it is not enough to condemn unfit meat where it is found, but that it is desirable in addition to take steps to ensure that the animals producing the meat were free from disease and that they were slaughtered under sanitary conditions. These objects are sought to be attained, where the animal is slaughtered in New South Wales, by the provisions of s. 22 of the Act, and, where the meat is brought into New South Wales, by the provisions of s. 43(1). It was said that s. 43(4) has the effect that meat brought into the State must undergo an inspection which is not required in the case of meat slaughtered in New South Wales and not moved interstate. Under s. 25 of the Act, meat from an animal slaughtered in New South Wales may be inspected again, notwithstanding that it had undergone an earlier inspection at the abattoir, but it will not necessarily receive this additional inspection, whereas s. 43(4) requires that meat brought into the State must be inspected. It cannot however be said to be outside the bounds of a reasonable discretion to require meat brought into the State to be inspected by an officer of the State, notwithstanding that it has already been inspected outside the State, at least when it has not been shown that this system of double inspection will be deleterious to the meat. By requiring this inspection the provisions of s. 43(4) do not discriminate against interstate trade in meat; they achieve the result that all meat sold within the State, whatever its origin, is inspected by officers of the State. As to the argument that s. 43 may apply to meat which has been slaughtered in New South Wales and taken from and returned to that State, it is enough to say that the present has not been shown to be a case of that kind, but in any event it is not shown to be unreasonable to inspect all meat coming into the State, and to make no exception in favour of meat that originated in the State but was taken outside it, particularly since to admit such an exception might well make it more difficult to enforce the provisions of s. 43(4). Finally, the fact that s. 29 may possibly have the result that meat may be seized and forfeited for what might be a comparatively venial breach of the Act does not mean that the provisions of the Act and Regulations which affect the plaintiff's interstate trade cannot be described as regulatory. As has already been pointed out, s. 29 does not itself affect interstate trade; it provides a sanction for the observance of other provisions of the Act and Regulations, and any burden on that trade has its source in those other provisions, namely in s. 43 and regs. 14 and 15. For the reasons given, those provisions prescribe rules for the proper conduct of the trade in meat which are reasonable and appropriate for the protection of the public interest, and which do not discriminate against interstate trade, and which accordingly are not repugnant to s. 92.

[48]

In Tasmania v. Victoria [14] Starke J. said: It was contended during the argument that sec. 112 of the Constitution supports the view I have taken. It certainly recognizes the rights of the States to pass inspection laws, and to make them effective. But inspection laws cannot be made a pretext for interference with the freedom of inter-State trade, commerce and intercourse. That would annihilate the provisions of sec. 92. and Dixon J. said [15] : It [i.e. s. 112] confers an express and special power upon the States to levy charges for the execution of their inspection laws. The purpose of doing so is to enable the States to do what otherwise sec. 92 and, perhaps, sec. 90 would or might prevent. It is true that it is expressed in terms which imply that the power to make inspection laws is retained by the States. The precise limits of the expression "inspection laws" may be difficult to define. But, at least, such laws are concerned with the ascertainment of the actual state or condition of goods and if exclusion from inter-State trade may follow from the discovery of a noxious, defective or undesirable condition that exclusion must result from the execution of the inspection law. Further, sec. 112 probably should be understood as an express reservation of power to make an inspection law which, otherwise, would be withdrawn by sec. 92. By the express terms of sec. 112, the power of the State to make inspection laws is placed under the control of the Parliament of the Commonwealth, which may annul them. It is absurd to suppose that, although the power reserved to a State to make inspection laws in reference to goods passing into and out of the State is so conditioned, it retains a power entirely uncontrolled to forbid absolutely the importation of a commodity from another State because the State Executive expresses the opinion that a vegetable disease may be introduced if importation is allowed. 1. (1928) 42 C.L.R. 209, at p. 240. 2. (1935) 52 C.L.R. 157, at p. 176. 3. (1935) 52 C.L.R., at pp. 185-186.