James v Cowan [1930] HCA 48

Feb, 27.28, among the States." : Mar. 3, 21. State of New South Wales v. The Commonwealth (The Wheat Case), (1915): Te Os: C.L.R. 54, applied. . Isaacs, ean eay Decision of Starke J. affirmed.

The Hon. John Cowan, the Minister of Agriculture for Australia, who was the Minister administering the Dried Fi 1924-1927 (S.A.), Gerald Albert William Pope, the deputy-chai m of the Dried Fruits Board of South Australia, Leslie Nattle

Board, Alfred George Carne and William Lennox Forsyth, officers of the Board, and the McCulloch Carrying Co., a carrying company employed by the Board to take possession of and remove the plaintiff's . The action was brought for seizing the dried fruits of the ypellant. The seizure was admitted, and justified under secs. 28 ind 29 of the Dried Fruits Acts 1924-1927 of South Australia. All e formal steps required by-secs. 28 and 29 of the Dried Fruits Act yr the compulsory acquisition of the appellant's dried fruit were aken, and the two questions that emerged for determination were (1) whether the acquisitions were for the purposes of the Act, and, if so, (2) whether the acquisitions and seizures in any way contra- yened the provisions of sec. 92 of the Constitution. _ From the statement of claim it appeared that the appellant resided t Berri in South Australia, where he carried on the business of a

ut Berri and the surrounding districts and processed and packed dy for sale such dried fruit grown and acquired by him into mercial "' dried fruit " and sold the same in Victoria, New South 'ales, Western Australia and Queensland and also in South Australia, ngland and in markets for dried fruit in other parts of the world. appellant also alleged that between December 1926 and May he had made divers contracts in writing for the sale and delivery the State of South Australia, to various purchasers respectively and carrying on business in one or other of the Australian ates other than South Australia, of large quantities of dried fruits, ind that by such contracts he was legally bound to ship the dried ruits at the port or ports of South Australia specified in such ontracts respectively at the times and in the manner stated therein e forwarded to the other ports of the other Australian States d in such contracts, and that, for the purpose of fulfilling e contracts and other contracts for the delivery of dried fruit to s in South Australia and other contracts, he had purchased om other growers large quantities of dried fruit upon terms that had to pay for such fruit at the times specified in such contracts ;

man of the Board, William Newman Twiss, secretary of the H C. or A.

and he alleged that by reason of the acts of the respondents in seizin his fruit he had been deprived of all fruit necessary for carrying o his business in the ordinary course. 4 The case came on for hearing in the Supreme Court of So Australia before Napier J., who held that it involved a question to the limits inter se of the constitutional powers of the Common- wealth and those of the State of South Australia; and it was, therefore, removed to the High Court by force of the provisions « secs. 38a and 40a of the Judiciary Act. Ona summons for dire taken out in the High Court, Starke J. made an order under sec. 4{ of the Judiciary Act removing the cause into the High Court. order was made lest it should ultimately appear that the case not automatically removed under sec. 40a of that Act. The action was subsequently heard by Starke J.

Villeneuve Smith K.C., Robert Menzies K.C. and Hannan, for th

SrarkeE J. delivered the following written judgment : -

This is an action against the defendants for seizing the dr fruits of the plaintiff. The seizure was admitted, and j under secs. 28 and 29 of the Dried Fruits Act 1924 of So Australia. Sec. 28 provides that subject to sec. 92 of the Con tion, and for the purposes of the Dried Fruits Act or any co made by the Dried Fruits Board constituted under the Act, Minister of Agriculture may, on behalf of His Majesty, purcha agreement or acquire compulsorily any dried fruits in South Au grown and dried in South Australia, with certain exce] immaterial to this case. Under sec. 29 the Minister may by on declare that dried fruits compulsorily acquired are acquired by. Majesty, and upon the service of the order all dried fruits de in the order cease to be the property of the then owner or ov and become the absolute property of His Majesty, freed fror mortgage or other encumbrance thereon whatsoever, and the ti

sive payment of the value thereof at the export price thereof. ovision is made for seizing and taking possession of dried fruits so acquired. All the formal steps required by these sections for the compulsory acquisition of the plaintiff's dried fruit appear to have been taken, and the questions that emerge for consideration are her the acquisitions were for the purposes of the Act, and, if 0, whether the acquisitions and seizures in any way contravened he provisions of sec. 92 of the Constitution.

As was said in Municipal Council of Sydney v. Campbell (1), "a authorized to take land compulsorily for specified

s: What are the purposes of the Dried Fruits Act for which compul- y acquisition is allowed? To some extent the purposes of the Act were indicated in James v. State of South Australia (2), but imately we must turn to the words of the Act itself. The sumption of dried fruits in Australia is not, it seems, sufficiently to absorb the whole of the output in Australia, and, to maintain preserve the industry of dried fruit production, it was considered "y to regulate and control the marketing of such fruit. The

or dried fruits in Australia, or the surplus output might be forced the Australian market and its export overseas compelled. Several ods were authorized by the South Australian Act to achieve ends. Thus, under sec. 19, the Board might purchase and sell ill dried fruits, encourage the consumption of dried fruits, and fix num prices to be charged on the sale of dried fruits, whether le or retail. Under sec. 20, the Board might determine

re and in what proportions the output of dried fruits produced any particular year was to be marketed. Doubts were entertained

(1) (1925) A.C. 338, at p. 343, (2) (1927) 40 CLR. 1. VOL, XLII, 26

nd property of such owner or owners is changed into a right to H.C. or A.

reason of the provisions of sec. 92 of the Constitution. Under sees 28 and 29, a third method was authorized - suggested, no doubt, by the Wheat Case (1) - namely, acquisition, by agreement or compul-

adopted in the present case. But I see nothing in the me contrary to the purposes of the Act: rather does it embody very end that the Act by its provisions contemplated and inten In the reply to the defence, various allegations are made concerning

that the Minister and the Board knew or believed that the dete

tions of the Board as to the disposal of the dried fruits crop invalid, and yet acquired the plaintiff's fruit with the object giving effect to those invalid determinations. But the truth is, I think, that the Minister and the Board were doubtful of both # validity and the practical efficacy of the determinations, and resoly to regulate and control the marketing of dried fruits, and particula the plaintiff's dried fruits, by another method sanctioned by the namely, compulsory acquisition. They did not do it with the ol or intention of bolstering up invalid determinations, or of punis the plaintiff, or of benefiting particularly the members of Australian Dried Fruits Association, or of obstructing, interferi with or preventing the plaintiff carrying on his business, wl domestic or inter-State, or of deterring or intimidating the plai and others, or of obtaining the approval and support of the mem! of the Australian Dried Fruits Association, or with any like inten As the consumption of dried fruits in Australia was not sufficient 1

growing States, the Minister and the Board were convinced the surplus would glut the Australian market and cause a fall prices, which, it was supposed, would be detrimental to the pro and stability of the dried fruits industry, however beneficial it m be to the consumers of dried fruits. So, in pursuance of the schem

the Minister and the Board resolved to use the powers appat

toforce the surplus fruit off the Australian market. And, if a grower not fall in voluntarily with the scheme, then he must be ipelled to do so, and the marketing and sale of his fruit regulated controlled by some method allowed by the Act.

pass now to the next question, namely, whether the compulsory equisition of dried fruits for the purpose of regulating, controlling marketing contravenes the Beaaeons of sec. 92 of the (Cuba

ei, provide that the power of haath shall not be exercised '80 as to violate the provisions oy sec. 92. But, independently of

ites from legislating so as to interfere with the freedom thereby etibed. By force of those provisions the States cannot by islation prohibit an owner from engaging his goods in inter-State trade and commerce. Nor can the States do indirectly what they cannot do directly. But in the Wheat Case (1) this Court unanimously held that an Act enabling the Governor of the State of New South Vales, by notification in the Gazette, to declare that any wheat described or referred to was acquired by His Majesty and upon such publication the wheat should become the absolute roperty of His Majesty and the rights and interests of every person in in the wheat at the date of the publication should be converted into for compensation did not violate the provision of sec. 92 the Constitution that trade, commerce and intercourse among the ates should be absolutely free. And this was held to be so, even ugh some of the wheat involved in the particular case was the ubject of inter-State movement and trade (see p. 56). Griffith C.J. (2): - * The title to property is governed by State law, and, in , the right of the owner to dispose of his property is also med by State law. The right to control such disposition is by sec. 92 of the Constitution. But that section has nothing y to the question of title. The duration of the power of osition, which depends upon title, is coextensive with the duration e title itself, and ceases with it. There cannot therefore be y conflict between the law of title and the law of disposition, and

(1915) 20 C.LR. 54. (2) (1915) 20 C.L.R., at pp. 67-68,

conferred upon them by legislation to prevent the evils feared, and H- ©. or A. 1929-1930.

a law which deprives a man of the ownership of property does not interfere with his power of disposition while owner. Sec. 92 may, therefore, so far as it relates to commerce, be paraphrased thus: Every owner of goods shall be at liberty to make such contrac for the transportation of goods from one State to another as he thinks fit without interference by law. It follows that as soon as he ceases to be the owner of the goods the section ceases to hay any operation so far as those goods are concerned." Barton J. any Powers J. were of the same opinion. (See also W. A. McArthur vy. State of Queensland (1).) Gavan Duffy J. and Rich J. in the Wheat Case (2) took the view that no enactment of a Stat

Parliament offends against sec. 92 unless it expressly forbids o restrains inter-State trade and commerce, or, as Gavan Duffy put it in McArthur's Case, unless the restriction or restraint is conditioned on the fact that such trade or commerce is cam on between the States. Zsaacs J. in the Wheat Case said (: $ "When a State deals with property on the basis of property ant regulates its ownership irrespective of any element of inter-State trade, there is no abridgment of absolute freedom of trade." If State "proceeds to exercise its own lawful powers of legisla without reference in any way to and perfectly independently a irrespective of such inter-State operations, it is not an unlaw exercise of legislative power." Later, in James v. State of Australia (4), Isaacs J. explained that in the Wheat Case the expropriation of wheat by the Government was held to be good because it appeared that it was made without reference to inter+ trade or inter-State contracts as a criterion or as influencing operation of expropriation, and without discrimination. Powers concurred in this explanation. I think this approaches the v of Gavan Duffy J., but it appears to me, with all respect, to be opposition to the reasons given by Griffith C.J. and by Bart Isaacs and Powers JJ. in the Wheat Case, and also with the deci in McArthu's Case. In the Wheat Case the acquisition of

(1) (1920) 28 C.L.R. 530. (3) (1915) 20 C.L.R., at p. 100. (2) (1915) 20 C.L.R. 54, (4) (1927) 40 CLR.

in no wise infringed the provisions of sec. 92. And the Court, it should be remembered, was dealing, in the Wheat Case (1), not only with the particular acquisitions therein alleged, but also with the potential operation of the Act, that is, with acquisitions which ight be made under its authority, e.g., acquisitions which contem-

• plated and necessarily restricted the inter-State movement of wheat. Unless, therefore, the purpose of the Dried Fruits Act, namely, the regulation and control of the marketing of dried fruits, makes some vital distinction, the Wheat Case rules this case, whether the view taken by the majority of the Court of the operation of sec. 92 or that taken by my brothers Gavan Duffy and Rich be accepted as correct. The State regulated and changed the ownership of the a dried fruits, and did not condition that regulation and e on the fact of inter-State trade or commerce : the ownership changed for a purpose of the Act, namely, the purpose of ontrolling the marketing of dried fruits, so that the dried fruits industry might be maintained and preserved. The wisdom of this icy and its effect economically upon the Australian consumers e matters for the Legislature, and have no bearing upen any mestion which falls for decision by this Court. However, I see no netion in principle between an acquisition by a legislative authority to maintain the Empire in time of war or to feed the people

modity are necessarily controlled and regulated. It appears to therefore, on the authority of the Wheat Case, that the juisitions and seizures of the plaintiff's dried fruits were duly and ly made, under the provisions of the Dried Fruits Act of South ia, and that this action must consequently be dismissed.

As this case will probably go further, it is perhaps desirable that ould assess the damages in case it is ultimately established that plaintifi's right has been infringed. I do so on the basis that the thole of the acquisitions and seizures of the plaintifi's fruit are held

m in that case the deprivation of the owner of his property H.C. or A.

to be unlawful. The heads under which damages are claimed are as follows : - (1) Loss of realizable value of fruit seized, £23,353 11s. 5d

The plaintiff, as I understood his counsel, admitted a deduction fi om the amount claimed of the sum paid under the acquisitions and adjustment of charges to f.o.b. Port Adelaide, amounting to £15,568 6s. Td. The defendants did not seriously contest the position that the plaintiff could have sold his fruit for £23,353 11s. 5d if his actions had been uncontrolled. Consequently, I should a) the difference, £7,785 4s. 10d. (2) Extra storage, extra wages, sundry expenses, loss of business and damage to goodwill. was a good deal of disturbance to the plaintifi's business by acquisition and seizures. His premises were used for storage pi his business methods and processes were slowed down and rendered more costly. He was put to expense in communicating with customers and others, and he also lost custom, both among supplit and purchasers, owing to the action of the defendants. But in connection with the loss of business it must be remembered after the Federal Dried Fruits Act No. 11 of 1928 the plaintiff only carry on business with a licence of the Federal authority. Further, the capital cost of erecting storage sheds should not be allowed. On the whole, I should award a lump sum of £1,000 for the various losses claimed under the items covered by this second head. (3) Carriers, nil. Expenses under this head were incurre i by the plaintiff in anticipation of seizures by the defendants and to put his dried fruits beyond their reach. (4) Liability to purchas and commission to brokers, £3,360. I see no reason to distrust plaintiff's evidence as to the items under this head. I should therefore, award the plaintiff a total sum of £12,145 4s. 10d. dama if it were held that the whole of the seizures of his dried fruits w wrongful and unauthorized. But, as in my opinion the acquisi and seizures of the plaintiff's dried fruits were authorized by the action must be dismissed with costs, except the costs of occasioned by the adjournment on 20th June 1929, which was du to the unreasonable conduct of the defendants.

From this decision the plaintiff now appealed to the a Cour of the High Court.

R.] OF AUSTRALIA. Oleland K.C. and K. L. Ward, for the appellant.

Clelland K.C. The power of acquisition conferred by sec. 28 of the Dried Fruits Act is limited to fruit which is the subject "matter of intra-State trade and does not extend to anything and the defendants in order to justify the seizures made must ow that they acted within the scope of that narrow authority. purposes of the seizure were (1) to enforce a determination ler sec. 20 of the Act that would be invalid by reason of lames v. State of South Australia (1), (2) for the purpose of inter- ing with and controlling his sales in the Commonwealth and ot merely in South Australia, and (3) to compel export of the ellant's fruit beyond the sea. The acquisitions were not made fide for the purposes of the Act but were directed against the ellant because he would not comply with the determinations of Board. The purpose of the acquisition must be a lawful purpose, nd if the purpose was only to compel the appellant to obey a mination of the Board which was not lawful it was not a good {uisition and was not within the authority of sec. 28. The repeated itions were made only owing to the appellant flouting the determinations of the Board and for the purpose of enforcing those minations, which were invalid. The State of New South Wales The Commonwealth (The Wheat Case) (2) has no application the present case. That case decided that where the only act is effect a change of ownership it does not interfere with trade and merce, but the Dried Fruits Act is directed to trade and commerce entirely. It is an Act the main power of which is to control trade, and to effectuate that power it gives incidentally the ancillary power f acquisition. The power of acquisition can only be exercised by a State subject to the Commonwealth Constitution, like any other power hat the State possesses. The power of acquisition under the Wheat isition Act was absolutely general, whereas the power under sec. the Dried Fruits Act was expressed to be " for the purposes of his Act or of any contract made by the Board." The onus lies on the ondents of showing that they were acting within sec. 28. The dence of the Minister was that the purpose of the acquisition of

the appellant's fruit was because he would not send a proportion his fruit out of the Commonwealth. The respondents had no powe to acquire the appellant's fruit, as far as sec. 28 was concerned, un it was for some purpose of the Act; the only de facto exercise of th power of acquisition was to enforce the determination of the Bo made under sec. 20 which this Court, in James v. South Aus (1), has held to be invalid. Although, if there had been only act of acquiring all the appellant's fruit he would have been deprive of the power of complying with the determination of the Board, y the more or less continuous acts of acquisition had as their object the purpose of coercing the appellant into compliance under implied threat of further acquisition. If that is the effect of the acquisition it is an interference with the freedom of inter-State trade and commerce and opposed to sec. 92 of the Constitution. It is not competent for the State Parliament to prohibit all dried fi in South Australia being the subject of inter-State trade. Therefi if Parliament cannot say that directly, it cannot do so indi and if it gives a power of acquisition which is limited to law purposes that power of acquisition cannot be used for an unlaw purpose that is forbidden by sec. 92 of the Constitution. In eff the fruit was acquired for the sole purpose of sec. 20 which has b held to be invalid, and, where a limited power of acquisition for a particular purpose is given, that purpose must be a valid one. Wheat Case (2) proceeded on the basis that the Act there in qu dealt with the title to property but not with its disposition. reasons given in James v. South Australia in regard to invalidity of sec. 20 and the determinations made under it, directly applicable to the acquisition instead of determination under sec. 28. [Counsel also referred to James v. South Austra

(3) and W. & A. McArthur Ltd. v. State of Queensland (4).]

K. L. Ward. If the statute deals only with proprietary rights it is unnecessary to apply sec. 92 of the Constitution, but if the stati is dealing with trade and commerce, the marketing of goods, sec. must be applied (W.& A. McArthur Ltd. v. State of Queensland (

Rt, ' (3) (1927) 40 C.L.R., at p. 39. 2) (1915) 20 C.L.R.

. (4) (1920) 28 C.L.R.'530. 5) (1920) 28 C.L.R., at p. 564,

'unlawful, and it is not permissible to attain an unlawful end by awful means, as is here attempted (Attorney-General for Ontario -y. Reciprocal Insurers (3) ). In that case an attempt to regulate ely State matters by what purported to be a criminal statute s held invalid. The object here was the same as that aimed at sec. 20, not to acquire the fruit, but to regulate inter-State trade forcing the fruit abroad.

F, Villeneuve Smith K.C., Robert Menzies K.C. and A. J. Hannon, the respondent. The only question is whether the seizure was the purposes of the Act, which are to be gathered by ascertaining main object (see Wheat Case (4), quoting Lord Watson's bservation in the course of the argument in the Canadian Liquor Case set out in Lefroy's Canada's Federal System, p. 213). The circumstances under consideration may be regarded for this pose (Eastman Photographic Materials Co. v. Comptroller-General of Patents, Designs, and Trade Marks (5)). The evidence shows tt the glut in the trade was the main circumstance. The us of proving that the acquisition was not for the purposes of the Act is on the appellant: Omnia praesumuntur rite esse acta. e main purposes of the Act were the control and marketing of dried fruit. The proviso to sec. 28 (1) shows that the power s intended to be used whenever the Minister thought it desirable

erseas and that power should be given to him for that very purpose. 19 (a), (6), (c) and (d) are only specific purposes which the er could carry out by virtue of the powers conferred by sec. 28. other powers in the Act except sec. 20 are merely administrative isions, and sec. 20 instead of being aided by the exercise of the wer is thereby rendered inoperative qua fruit seized under sec. Sec. 20 is always silent when sec. 28 is speaking (Hx parte

• (1) (1915) 20 C.L.R., at pp. 66, 68, 79, 106, (4) (1915) 20 C.L.R., at p. 98. ~ 2) (1927) 40 C.L.R. 1. (5) (1898) A.C. 571, at p. 575. (8) (1924) A.C. 328, (6) (1928) 42 C.L.R, 209.

also referred to the Wheat Case (1).] In James v. South H.C. or A. Australia (2) the end to be achieved under sec. 20 was declared pee Cr

K. L. Ward, in reply. Sec. 28 only authorizes acquisition for those purposes which Parliament has actually expressed in tl statute as being necessary for regulating the marketing of dr

acquisitions can only be for the specified purposes - and sec. 20 has' ceased to be one of them - there is no purpose expressed in the Ac which justifies an acquisition made for the purpose of " forcing surplus fruit off the Australian market, or compelling a grower to do so when he would not do it voluntarily." Therefore the acquisitio are not authorized by sec. 28, because the respondents cannot poi to any purpose of the Act for which such acquisitions were mai Even if the purposes for which acquisitions are authorized by sec. include the general purpose, the general purpose can only be gath¢ from the specified purposes and cannot be larger than the sum of the specified purposes ; for the purpose of controlling marketing a mere generic description, and the evidence proves, and it is so found by Starke J., that the purpose of the acquisition was to for the dried fruit off the Australian market. This is the purp contained in sec. 20, and in no other part of the Act, but that is not a purpose of the Act because the section has altogether disappes Therefore, the Minister did not acquire for any purpose of the A The Wheat Case (1) has no application to the present case, be that case does not decide that a State can in all circum: avoid the consequences of sec. 92 of the Constitution. If a stat is really a "marketing" or a "trade and commerce " Act, it governed by sec. 92. The Dried Fruits Act is such an Act, and in so far as it authorizes acquisitions for marketing purposes it mus be construed subject to sec. 92 and must be limited on construct to authorize only such acquisitions as do not interfere with of inter-State trade. On the evidence the acquisitions were to prevent disobedience to sec. 20 and to punish the appellant | having disobeyed sec. 20 in this sense, namely, to deprive him the means of carrying on his business by taking his fruit away. acquisitions were made to attain the same end as was al

sec. 20. That end was declared invalid. Therefore, the State t by employing valid means attain a forbidden end.

'The following written judgments were delivered : -

Kyox C.J. anp Gavan Durry J. This is an appeal from the ent of Starke J. dismissing the action. We agree with the med Judge both in the conclusion at which he arrived and in the sons given by him in support of that conclusion, to which we nnot usefully add anything. In our opinion the appeal should be

cs J. The appellant James is a resident of South Australia, ere he carries on the business of growing, drying and dealing in it, and in the course of his business selling his dried fruit in South alia, in other States of the Commonwealth, and beyond wustralia. At various dates from 7th March 1927 to 27th November i dried fruits belonging to the appellant were forcibly seized and away from him by the respondents, and were disposed of by wan the respondent, or by his direction, in London. After wing for the sums paid to him as compensation, as directed by Act, and for certain adjustments, the seizures have caused him uniary loss representing the difference between the sums ioned and the selling value of the property taken, such loss g assessed by my brother Starke at £12,145 4s. 10d., and not v challenged by either side. Prima facie there was a series of ible trespasses and conversions for which the respondents are liable unless they can justify. The justification set up is the hority of the South Australian Act No. 1657, passed on 24th ember 1924, and brought into operation by proclamation on d January 1925. The Actis, by virtue of Act No. 1784, continued 31st March 1930. Notwithstanding the expiry of the Act on date mentioned, the issues raised by this appeal are of lasting d far-reaching significance, over and above their importance to le present appellant. The impelling reason for the seizures and ial confiscation was that the appellant insisted on exercising his

H.C. or A. egal rights to sell as best he could his dried fruits in South A 1929-1930.

and in other States of Australia. Admittedly it was to control him - in this respect that the deprivation of property took place. The thesis maintained by the respondents is that it is within the power of a State Parliament, notwithstanding sec. 92 of the Federal

Constitution declaring inter-State trade to be " absolutely free," to empower a State Minister to prevent private owners from carrying

on inter-State trade to any extent he thinks fit, by expropriating any of the private owners' property actually engaged or intending to be engaged in inter-State trade. If after Hx parte Nelson [No. 2] (1) there is still any visible remnant of sec. 92 of the Federal Constitution, - the thesis just stated, if sound, effectively removes it. But to complete the attempted justification in this case, one step furthe

mentioned - assuming it to be valid - confer the requisite authority. That, indeed, is logically the first point of inquiry, and to that question I shall first address myself, since if, as in my opinion the case, the Act, on pure construction, gives no such authority, no constitutional question of any kind arises. The authority relied on by the respondents for the exercise of the power of expropriation was carefully formulated in writing during the argument by thei Jearned counsel and handed to the Court for greater convenience and certainty. It is that "the power was intended to be used wherever the Minister thought it desirable to export overseas as an expedient for the better marketing of dried fruits." Thatis not found anywhere expressed, and in the circumstances a careful examination of the Act is necessary. i

The Act - The full title of the Act is " An Act to make better provision for the Marketing of Dried Fruits, and for other purposes." The enacting portion constitutes a " Dried Fruits Board " consis of five members, three being representatives of the growers and being official members. The Board has power to appoint offi such as inspectors and others "for the purposes of this Act" ( 17 (2)), and by the same sub-section provides for arming tht officers carrying out "the purposes of this Act" with powers duties that it is punishable to obstruct or resist. The Board,

to defray the expenses of " administering " the Act and of carrying their duties and functions thereunder. This is supplemented ec. 36, which provides that all expenses incurred "for the purposes f this Act" shall, so far as not provided for by the Act itself, be out of moneys to be provided by Parliament for the purpose. o central sections confer on the Board powers of the fullest cription within the limits assigned. Sec. 19 says: "The Board all also have power in its absolute discretion from time to time (@ to make contracts with any person in respect to the purchase or sale of dried fruits produced in Australia; (b) to enter into

or depots for the sale of dried fruits, either wholesale or by (d) to provide depots for the storage or distribution of

and (g) by means of advertising or any other appropriate means, to encourage the consumption of dried fruits, and create a reater demand therefor.' Sec. 20 says :- - "'(1) The Board shall also have power, in its absolute discretion, from time to time to ine where and in what respective quantities the output of d fruits produced in any particular year is to be marketed, and

ke whatever action the Board thinks proper for the purpose of nforcing such determination. (2) Notice of every such determina- on shall be given - (a) by public notice; and (b) by sending by jost to each grower or dealer affected or likely to be affected by the ete mination, at his address as registered with the Board, a letter ining particulars of the determination." Subsequent sections, 1 to 27, are grouped under a heading, " Registration of Growers, ers, and Packing Sheds," and are obviously ancillary to secs.

iped under the heading, " Minister may Purchase, or Compulsorily juire, Dried Fruits." The effect of sec. 28 - the vital section in

ec. 18, has power to levy a tax on all growers in South Australia H.C. or A.

this case - I shall consider presently, only stopping now to say th the power of acquisition is conditioned to be " for the purposes this Act or of any contract made by the Board." There follow som miscellaneous sections which, apart from sec. 36 above. quoted, a for immediate purposes immaterial, except sec. 34, which decla that the Governor may make regulations for or with respect "(a) the purchase, acquisition, sale, or marketing, or the arr: for the purchase, acquisition, sale, or marketing, of dried fruits and also (b) inspection, (c) branding and marketing of package (d) registration of growers, and (g) matters required or permit by the Act to be prescribed, and "(h) generally, all matters things necessary or convenient to be prescribed for carrying this Act into effect." It is of some importance to observe that by sec. 38 of the Acts Interpretation Act 1915 (No. 1215), all such regulations must be published in the Gazette and laid before Parliament, if in sessi fourteen days after publication, and if not in session, then wit fourteen days after the commencement of the next session. House may by resolution disallow a regulation.

It thus appears that - putting aside for the moment all considera tions of conflict with the Commonwealth Constitution - the Ac (that is, by its enacting provisions) contains and specifies a apparently complete code of authority and procedure for with the question of " marketing of dried fruits," and constit what the Legislature considers the "' better provision for marketing " promised in the full title. Certain concrete purposes are pla discernible in the enacting provisions. To avoid a glut locally, Board has powers of stimulating local demand in South Australi in various ways, and, to the extent that the local demand in that State is in the Board's opinion insufficient to return remunerativ prices to growers and dealers, it has upon construction power prevent the surplus being sold either in that State or in any othe State in Australia. But the Board cannot, apart from sec. 19 dispose of that surplus, and so sec. 28 is designed to enable tl , Minister not only to help the Board so far as it needs assistance i increasing local consumption, but also so far as the Board's de minations create a legal surplus which consistently with -determinations must not be sold by private owners in Australia

s South Australia is concerned. The part the Minister is to play cillary to the determinations and policy of the Board, and, where ght necessary, is to render effective by responsible Government the conclusions at which the Board arrives. The Ministerial t as designed by the Act is to assist and not to supersede the

are found in sec. 19 (b) and sec. 20. That part of the scheme eady declared invalid by this Court in James v. South Australia If the scheme is to be regarded as an entire one, of which, as ink, the prevention of diversion to other States of the forbidden plus of South Australian trade is an essential part, and without there is now left only a "highly truncated " enactment (see ey-General for Manitoba v. Attorney-General for Canada (2) ) the State Parliament obviously would not have passed, then State constitutional law the legislation is inoperative. When

heart has ceased to beat, it is difficult to imagine the creature as

e to rest the decision on that annihilating principle. It has been d in James v. South Australia (3) that "the legislation does transcend the territorial jurisdiction of the Parliament of South lia - it is confined to persons, property or acts within the ial limits of South Australia." All the powers of the Board er secs. 19 and 20 and of the Minister under sec. 28 are therefore be taken as strictly confined to exercise in South Australia. But s done by the Board, though in South Australia, may effectually s and stifle inter-State trade between that and another State alia, and they are manifestly intended to do so, if the Board s fit, both under sec. 19 (6) and sec. 20. Sec. 20 makes the m of the Board expressed by determination as to place and

probably the power is confined to such enforcement as is vided for in the Act), and it provides for notification of this deter- ination to each grower and dealer. That " determination" is then

(1) (1927) 40 CLR. 1. (2) (1925) A.C. 561, at p. 568, 3 (8) (1927) 40 O.L.R., at p. 37.

That, for present purposes, sufficiently describes the scheme, so far H.C. or A.

intended to be the law of South Australia as to those subjects. by sec. 31 a breach of a determination involves a penalty up to £

therein specified "in its absolute discretion," sec. 34, as alread mentioned, empowers the Governor - that is, the Governor Council, or, in other words, the Government of the day - to m regulations as to those subjects. How far those provisions are to

be harmonized, it is not now necessary to consider. But it is cle: that the contention of the respondents is wholly indefensible. It that outside and beyond the Board's " absolute discretion " notii to growers and binding them in their action at their peril, and a published regulations of the Governor in Council reviewable b either house of Parliament, there is a third unlimited power creat by the Act and vested in the Minister, which is independent a supersessive of, and even repugnant to, the other two, because its exercise makes them incapable of operation. The suggested po

tion. As stated, sec. 28 empowers the Minister to " acquire compu sorily " any dried fruits in South Australia, unless they are cover . by a Commonwealth licence or Commonwealth control, or are, shortly speaking, to be exported abroad. But the power compulsory acquisition is to be exercised subject to two exp conditions, namely, (1) that it is subject to sec. 92 of the Common- - wealth Constitution, and (2) that it is "for the purposes of this A or of any contract made by the Board." No relevant "contract" was "made by the Board," and therefore we are confined in respe of justification to the condition "for the purposes of this Act." And further, the burden in this case lay on the respondents to particularize the purpose on which they relied. i My brother Starke has held, and both parties agree and have fought this appeal, on the basis that the " purpose" acted on was not to enforce or assist any statutory determination of the Board or any other statutory action of the Board or for 'any other purp than to carry out a "scheme" as it is called - apparently inferred from a combined contemplation of Acts and regulations of the Commonwealth, and this and other States, and the opinions of the Minister and the Board and similar authorities elsewhere. "

h the combined general effect of varying enactments, regulations determinations, "the Minister and the Board resolved to use powers apparently conferred upon them by legislation to prevent the evils feared, and to force the surplus fruit off the Australian market." That is, then, the "purpose" by which it is sought to sti fy the trespasses complained of. In plain terms, it is to prevent tate trade in the surplus fruit. I think it safer to adhere to the words of the learned primary Judge, since both parties accept the finding so far as correct. The "scheme" is nowhere expressly formulated, but is to be deduced by inference, as above stated. The " resolve " of the Minister and Board is nowhere recorded, nor is it be found anywhere except in such a broad generalization of statutes and incidents as my learned brother has applied.

'For instance, the eee " surplus fruit " leads to the inquiry as to what constitutes a "surplus " in South Australia. It is found, nd was 'maintained i in argument, that the Minister's purpose was to bolster up the Board's determinations. They were illegal, d were studiously avoided by learned counsel for respondents. Obviously then, the " surplus " depended on nothing but some vague ntal arbitrary estimate of the Minister, incapable of reduction to ite concrete statement. I entirely accept the accuracy of my red brother's finding as to the actual "* purpose" which is to attributed to the Minister in the circumstances. Putting aside ll the possibilities that are negatived in the judgment under appeal, nd assuming there was some " purpose," nothing remains but that ich has been formulated by my brother Starke. But where is a "purpose" found in the Act? Nowhere expressly. And it would manifestly be just as invalid as sec. 20, why should it y case be implied 2? But there is a still deeper reason. Without intimation of the " purpose " to the appellant, without affording lim the means of judging whether he had the right to defend his erty or not, with nothing but a tacit resolution to bring his ling operations into what their unbridled discretion considered able state, they - the Minister and the Board - expropriated eeetty. on terms that mean confiscating over £12,000, never

the reason, and now, in the pressure of an action, setting 'VOL, XLII. 27

suance of the scheme," which I take to mean in supposed harmony H. ©. or A.

up under the shelter of sec. 28 this supposed " resolution " as one of the purposes of the Act. The Ministerial action, relied on defended as it is, is so opposed to British fair play and the comm sense demands of justice that nothing short of express and intractal words would induce me to accept it as sanctioned by Parliament. it were there found expressly stated that, over and above the speci purposes to be read in the actual words of the Act, there was an additional and possibly clashing purpose consisting of investing th Minister with czar-like power, resting on his own secret unchallen able conception of what inter-State trade was desirable in public interests, and his own unascertainable will in that respect, expropriate property without explanation and at certain loss to the individual, it would more than answer the description of "The Ne Despotism" so graphically stated by Lord Hewart. At p. 17 of his work he says : - " The new despotism . . . gives Parliam an anesthetic. . . . It is to subordinate Parliament, to ev the Courts, and to render the will, or the caprice, of the Sixodait unfettered and supreme." And at p. 19 the Lord Chief Justic says : - ''It is a strong thing to place the decision of a Minister, in a matter affecting the rights of individuals, beyond the possibili of review by the Courts of Law. And it is a strong thing empower a Minister to modify, by his personal or departmental orde the provisions of a statute which has been enacted."

If the respondents are right, they have succeeded, by mere informa unrecorded and uncommunicated " resolve " of Minister and Boa in not only seriously affecting the rights of the appellant witho the least opportunity to him to contest the "resolve," but they have for all we know overridden the formal determination of Board, to which the Act requires obedience. That those determ ing tions are invalid is nothing to the point for this purpose, which is to ascertain legislative intention. The point is: Did Parliamel '

thought fit, either by increasing or decreasing the quota, and so completely altering the situation? Did Parliament intend, example, that when the Board under sec. 19 (6) had made a contrat with other States as to what course was to be pursued, the M inister by ukase, based on nothing but his private will, might entirely

State arrangement? I am unable to accept the suggested pretation of the Act. The whole of this mighty and unusual tructure is built primarily and mainly on the title of the Act, and aid to be supported to some extent by the proviso to sec. 28 (1) f the Act. In my opinion the title - even the full title - is not able to bear the burden. The task is to make the word " purposes " in 28 include the Minister's unlimited discretion to determine how 'keting, including in that term intra-State, inter-State and foreign rade and commerce, in "' dried fruits," shall be carried on. '' Dried s," it will be observed from the interpretation section, is a phrase t includes not merely currants, sultanas and lexias, but any other iried fruits that may be proclaimed as dried fruits " for the purposes this Act." This goes beyond the Commonwealth legislation. He might mentally determine one way to-day and take all a man's he might next week, on a review of trade, alter his opinion

ew and expropriate the goods of a third who had entered into tions on the basis of the first or second view. There is no

ered volition all that might be done by regulation under sec. J), and more, and apparently even in defiance of any regulation. But it is further said that the proviso to sec. 28 (1) " shows that power was intended to be used wherever the Minister thought able to export overseas as an expedient for the better market- ig of dried fruits, and therefore the expression ' for the purposes of Act' at least includes the main object of the Act, the control keting." I have there quoted more fully the written argument plied by the learned counsel for the respondents. The first ation that needs to be made as to that argument is that the 0 referred to has relation to export not by the Minister but

portation is as to goods to be excluded from the power of iation, by obtaining a licence for their exportation under mmonwealth Act. The foundation of the whole contention le word "marketing" in the title. That word is seized on, ited from its context, and erected into a " purpose" of the

art from that, and penalize growers who were observing the H- ©. or A.

Act within the meaning of sec. 28. That, in my view, is impossible. The title is the label which the Legislature thinks suitable to identify the contents of the depository of its will on #h given subject. It is no part of its enactment as to the " purposes of the Act, except as to its authoritative selection as a label. 1 title is no more part of the remedy designed to cope with the ey dealt with than is the label on a druggist's bottle part of the re for the malady intended to be cured. In case of doubt, it useful aid in identification by assisting to ascertain the general s of the legislation and help the interpretation. If the operati words are ambiguous, it is often a great aid to construction to be st of the general object of the statute. "The title may be looked a aid in finding out the object " (Salmon v. Duncombe (1)). i may

The Queen (2); Vacher & Sons Ltd. v. London Society of Compos (3) ). The significations of the words " object " and " purpo are so various in different collocations and in relation to dif

egregious error. For instance, the " object " of a statute for o1 purpose may be properly defined as the end to which its pro on their true construction appear to be directed. For a purpose it may properly be regarded simply as the legal el produced by its operative provisions, as in this Act, sec. 19 (6). d example, an Act to raise taxation on inter-State contracts in the more limited sense, when viewed apart from constitutic restrictions, be said to have for its object the raising of re But from the constitutional standpoint the object might the repression of inter-State trade. As an illustration of th confusion arising through not observing the aspect, learned cou for the respondents quoted and relied on my quotation from Watson appearing on p. 98 of the Wheat Case (4). At that point my judgment, as the merest glance will show, I was dealing V " object " of a State statute in its relation to the Federal Cons

• that is, as to subject matter - and was pointing out that

the State Act did by the relevant section, judging by its langu

(1) (1886) 11 App. Cas. 627, at p.634. (3) (1913) A.C. 107, at p. 128. 4 (2) (1884) 9 App. Cas. 757, at p. 772. (4) (1915) 20 C.L.R. 54.

sition of wheat. That was the sole subject matter of the That has nothing to do with the question involved in the

assed " with the object "' (in the larger sense) of doing so. The on of Sir Rowndell Palmer and Sir Robert Collier was quoted as

y the "necessary effect," it needs scarcely be said, those learned ts meant the necessary legal effect, not the ulterior effect mically or socially. I think it may be accepted that the Privy il on appeal regarded that view as correct (2). What was rded as most material as the object by Lord Watson for his ses, was rejected by Lord Birkenhead for the Judicial Committee

Yow, looking at the title of the South Australian Act for the ly legitimate purpose of construing the operative part of the

e, what do we find to assist us? The title, I repeat, is " An tto make better provision for the Marketing of Dried Fruits, and r other purposes." As to the "other purposes," we get no help the title. With respect to " Marketing," the crucial words make better provision" for the marketing. What that er provision" is, we cannot learn, except by examining the tive part of the Act, where the better provision is " made." o what " marketing " is, we have also to discover by examining body of the Act. So far as I can see, there is nothing which ices the unmeasured and irresponsible power of the Minister nded for. There is no doubt the Legislature of South Australia

d the unregulated marketing of dried fruits as an evil to be

) (1918) 26 C.L.R. 9, at p. 65. (2) (1920) A.C. 691; 28 C.L.R. 106.

met by legislation. If there were ambiguity in the legisla

designed to meet the evil, the evil itself and the statement of that e by the Legislature could be looked at so as to resolve the ambi (Eastman Photographic Materials Co. v. Comptroller-General Patents, Designs and Trade Marks (1) ). But, as Lord Dunedin

restricted in order to protect a natural freedom. In other words the evil that was to be checked can only be considered so far as is necessary for the interpretation of the words, but must not be us for an independent determination of the scope of the remedy." scope of the remedy is the all-important point here. It is not mate to strain language " in order to make it apply to a case to whic it does not legitimately inits terms, apply, on account of the supposed intention of the Legislature and the theory that that supposed intention can only be effectually carried out by giving to the w a meaning which they do not naturally bear " (per Lord Herschell in Kent County Council v. Lord Gerard (3) ). The underlying fallacy in the respondents' contention is that it substitutes the purpose (abstract) of Parliament in legislating the purpose (concrete) of the Act as passed. Frequently the ph "the purpose of the Act" is employed to denote the general objj sought to be achieved, the amelioration of the evil. found in Hill v. East and West India Dock Co. (4), per Lord Ca and Attorney-General for Manitoba v. Attorney-General for Cana (5), per Lord Sumner in a passage to which I shall revert. that abstract sense " purpose " means no more than policy. excellent illustration of the essential difference between the abs purposes and the concrete purposes is to be found in the ju ment of Lord Swmner in Birkdale District Electric Supply Co. Corporation of Southport (6), where the learned Lord says: " may be the policy of the Electric Lighting Acts to get tradi

(1) (1898) A.C., at p. 575. (4) (1884) 9 App. Cas. 448, at p. 455. (2) (1914) A.C. 587, at pp. 595-596, (5) (1929) A.C, 260, at p. 268. (3) (1897) A.C. 633, at p. 639. (6) (1926) A.C. 355, at p. 373.

companies to take up and work Electric Lighting Orders in hope of gain, but I cannot see that it is in any part of the direct urposes of the Order, that money should be made or dividends tributed." (The italics are mine.) The analogous point here is it it is no part of the direct purposes of the Act that the Minister hould have carte blanche control of inter-State trade. The '' purposes of the Act" which justify compulsory acquisition are always direct purposes, that is, directly authorized. In Lloyd on Compensation, 6th at p.5, it is stated quite plainly, and as an axiomatic principle, that "The purposes of the special Act are those only which are nted out by it." Sucha purpose is what Burton J.in Warburton v. Loveland (1) terms a " declared purpose of the statute." While no bt a more liberal exercise of discretion will be permitted to a body than to a set of private individuals, yet it is always the prescribed ambit. " Whatever the Company has power lo, they may take the land for," is the test laid down by Jessel M.R. Wilkinson vy. Hull &e. Railway and Dock Co. (2). Adapted to this case it is the proper test here. Whatever the Board has power to do, whatever, if anything, the Minister has power to do, the Minister may take the land for, so long as there is bona fides. You cannot challenge the Minister's bona fides on the ground of dishonesty all - that, in my opinion, can never be imputed to the King's cutive. But if it is shown that the land is wanted only for some 'al purpose, as a fact, or that the alleged purpose is absurd as

etropolitan District Railway Co. (3) ). Property is never permitted 0 be expropriated except to carry out some specific purpose which

ay Co. (4) ). Indeed, the particular purpose is "an essential of the description" of the property to be taken compulsorily per Rigby L.J. in Donaldson v. Mayor &c. of South Shields (5) ). t would not only be without precedent, but contrary to well lished rules of statutory interpretation, to evolve from the title

(1) (1828) 1 Hud. & B. 623, at p. 648. (3) (1882) 19 Ch. D. 559, at p. 571. (1882) 20 Ch. D. 323, at p. 335. (4) (1868) 3 Ch. App. 679, at p. 681. (5) (1899) 79 LT. 685, at pp. 690-691.

of the Act the authority of the Minister to resolve as suggested a to make that resolve the legal basis for the operation of sec. 28.

The present Lord Chancellor (when Sankey J.) said of an A under consideration in R. y. Hammer (1) what is very apt here: "The meaning of the words as used in the Act under discussion must be derived from a consideration of the words themselves, from consideration of the place they occupy in the statute, and from a consideration of the statute as a whole." The words "to make better provision for marketing" do not naturally or even remotely

comprise a power of arbitrarily and secretly resolving on a metho

of marketing; the place they occupy is one where no one wou F naturally expect to find such a power, and a consideration of statute as a whole shows that such a power would be incons

with the declared and direct purposes of the Act. The repeated u of the expression "the purposes of this Act" in the sections aboy referred to is to my mind decisive against the existence of such a power and in favour of confining the phrase to the operativ provisions of the statute. If such an unmeasured power was intende! by Parliament, then, as Lord Ellenborough observed in R. v. Skoi (2), " Quod voluit non dixit." " We cannot," said Lord Brougham in Crawford v. Spooner (3), "' fish out what possibly may have bee!

the intention of the Legislature." We have simply to take words and construe them to find its declared "* purposes," and n add some imaginary purpose by way of supplement. The " parti purpose " authorized is always to be looked for, even though the power is given to public trustees (see per Blackburn J. in Ayr Harbou Trustees v. Oswald (4) ). It may be expressed in general ter but it must find embodiment in words capable at least of connotin such a purpose. And see per Warrington L.J. in Taff Vale Railway v Cardiff Railway (5) and per Bayley J. in Guthrie v. Fisk (6). B it must be particularly clear where the exercise of the power of expropriation permits confiscation, complete or partial. It isa canon of construction that general or ambiguous words should not be used to take any legitimate and valuable rights without compensation

(1) (1923) 2 K.B, 786, at p. 791. (4) (1883) 8 App. Cas, 623, at p. 634. (2) (1805) 6 Bast 514; at p.518; 102 (5) (1917) 1 Chr 399, at p. 310. ER, 1384, (6) (1824) 3 B. & C. 178, at p. Le (3) (1846) 6 Moo. P.C.C. 1, at p.9; 107 E.R. 700. 13 E.R. 582.

such a result consistently with the general purpose of the ction ee of Railways on Harbours of the Union of South

oor in Central Control Board (Liquor Tr rafic) ve ith Brewery 2)). And since the Legislature categorically set out the

ses" in its enacting provisions, in respect of which, for the d public good, private rights might at the will of the Minister crificed, it is not in accordance with the canon referred to that the of sacrifice should be enlarged by what after all is a merely con- ural signification of the words in the title. To this may be added

is additionally a reason for requiring great distinctness of language. e, for instance, Mackay v. Attorney-General for British Columbia

was urged for the respondents that the expression "for the urposes of this Act" in sec. 28 cannot be intended to cover the oses of the Act as expressed in sec. 19 (a) and (b), because of vords "or of any contract made by the Board." In any case, omuch reliance must not be placed on that phrase, because sec. 29 'not contain it, but limits its provisions to contracts under and r "the purposes of this Act," and it would be absurd to exclude a of compulsory acquisition made for the purpose of a Board act. And again it is quite plain that the expenses incurred e Board in making contracts fall within the phrase " the purposes Act" in sec. 36, and therefore are not treated by the ture as altogether outside that expression. It is difficult to precisely why the expression referred to should have been

din sec. 28 and omitted from sec. 29, but it is not doubtful

"purposes " of the Act and the " purposes" of a contract: made Board. And once the " purposes," as distinct from the " of the contract, were included in sec. 28, they fell into

(1) (1918) A.C. 591, at p. 603. (2) (1919) A.C. 744, at p. 760. (3) (1922) 1 A.C, 457, at p. 461.

are reasonably capable of being construed so as to H.C. or A.

then been made so by the operative part of the enactment. one thing is very prominently evidenced by the insertion of reference to the contract of the Board, namely, that the Legislature was extremely careful to express whatever it intended to justify as expropriation outside the usual effect of " purposes of the Act."

I ought not to pass by without notice one singular arg advanced by the respondents. It was that sub-sec. 3 of sec. 28 was a "purpose"? that attracted the power of expropriation 1 sub-sec. 1. Sub-sec. 3 says: " Any dried fruits acquired pursuant

fit." Clearly the sub-section cannot be regarded as a justification for acquiring. Before it can operate at all, the acquisition must be complete, and must have been made " pursuant to this Act," whi means that it was for some permitted "purpose." And since, as stated, the decision of this Court is that all acts permitte by the statute are confined to the territorial limits of South Austra it certainly could not justify - as a purpose - the Minister's to sell in London. I therefore am very clearly of opinion that admitted " purpose" in fact of the Minister said to be ex from the title was not in law a purpose of the Act within the meanin of sec. 28. As I personally view this case, it would stop at this point,

It is, however, necessary for me to consider the second bra which is: Assuming the disputed authority can be deduced the Act independently of sec. 92 of the Federal Constitution, does the Wheat Case (1) support the validity of the statutory authority.

in dried fruits by expropriating them at penal rates. The que then is this: "Is the legislation sanctioned by the decision in Wheat Case?" Tt appears to me that that question must answered very distinctly in the negative. It will be observed this branch of the case, as argued, is less an examination of t Constitution than an examination of the Wheat Case, the purpo

of the Constitution by declaring that " the Governor may, by notifi- m published in the Gazette, declare that any wheat therein scribed or referred to is acquired by His Majesty," and that upon such publication the wheat shall become the absolute property ff His Majesty." I omit immaterial ancillary provisions as to q mpensation, &e. There were sections cancelling contracts confined inter-State trade, which are irrelevant. But the distinctive feature of the Act in that case was that it authorized expropriation of the erty as such simpliciter, and did not expressly or implicitly to inter-State trade or commerce, either as a criterion of uithority or as a description or attribute of the property to be xcquired. It is obvious that such a decision leaves wholly untouched question in the present case.

Here, by the assumption, we have a statute which is the very ntithesis of the Wheat Acquisition Act. It makes the repression of "State trade the causa causans of the expropriation, which is the means selected to carry out effectively the attempted control of the inter-State trade. The property compulsorily acquired

mpulsory acquisition. But, while it is patently impossible to d the " decision '' itself as supporting the respondents' conten- , reliance is placed on certain reasoning there found. This during argument has declined to reopen the decision. It was imous, and I venture to say was transparently right. But the ms present no unanimity, nor even preponderance of any principle concludes this controversy in favour of the respondents. The ce of the reasons of Griffith C.J. at pp. 66-67 is that the was in general terms, and should be construed as not extending infringe sec. 92 of the Constitution, since it did not on its face ar to deal with matters protected by that section. In other words,

it was not to be construed as attempting to control inter-State trade. The learned Chief Justice adds a paraphrase of sec. 92 which is greatly relied on, and indeed made the foundation of the respondents' contention. I shall come back to that presently as it merits special and close attention. But, in passing, I may say it would be a sorry tribute to the memory of the learned Chief Justice to impute to him an opinion that a law transferring ownership on terms that make the transfer a quasi-penal consequence for insisting on carrying on ~ inter-State trade free from State interference, was not an infringement

of sec. 92. The reasons of Barton J. were substantially the same as

those of the Chief Justice. My own opinion is found at p. 100. I

said : "The key to the matter lies, in my opinion, in the fact that trade

and commerce consists of acts not things." That has been adopted

in McArthw's Case (1). That principle, as will be seen, is, if still

adhered to, decisive of this case. I went on in the Wheat Case (2) to say that " when a State deals with property on the basis of property

and regulates its ownership irrespective of any element of inter-State - trade, there is no abridgment of absolute freedom of trade. The State cannot know what contracts exist at a given moment, or what - movement of property towards another State has begun, and if it proceeds to exercise its own lawful powers of legislation without reference in any way to and perfectly independently and irrespective - of such inter-State operations, it is not an unlawful exercise of

legislative power. It cannot do indirectly what it cannot do directly; but here it is not directly or indirectly interfering with commerce at all. It does no more than would be done if the property passed to an assignee under a bankruptcy law, or were retaken by the vendor under the State law of stoppage in transitu. When the State : without reference to inter-State contracts as a criterion, or as t influencing the operation of its enactment, proceeds to acquire wheat : to feed its citizens, it merely changes ownership. It does not assume to govern the duties of the contracting parties to each other, or ; regulate in any way the interchange of goods belonging to the vendor." _ My brother Gavan Duffy said of the Wheat Acquisition Act (3): - "Tt does no more than empower the King to acquire any or all of

(1) (1920) 28 C.L.R., at p. 550. (2) (1915) 20 C.L.R., at p. 100. (3) (1915) 20 C.L.R., at p. 105.

ain the subject matter of inter-State trade and other grain. . . . In truth, the Act is not primarily an interference with inter-State trade commerce at all; it is an exercise of the legislative power declared by sec. 107 of the Constitution to remain in the Legislature of New

South Wales for the purpose of managing its own internal affairs." Powers J. appears to rest his judgment on the Act being a mere general acquisition of property. Rich J. on this point says (1): "7. . . adopt what has been said by my brother Gavan Duffy." 'The only thread common to the reasoning of all the judgments is "that the Act was general and did not assume to control or regulate any inter-State operations. Reliance, however, was placed on the "paraphrase" of sec. 92 by Griffith C.J. (2). Yet it finds no 'concurrence of any other Justice except my late brother Barton, nd it is not in any case part of the " decision " to which this Court determined to adhere. Strictly speaking, what I have so far determines in my opinion the second branch also against the jondents: that is, the Wheat Case is not an authority support- their attempted justification. But it is not desirable that I hould stop there. The reasoning should be more deeply examined. s Lord Macnaghten said for the Privy Council in Mussummat Durga Choudhrain v. Jawahir Singh Choudhri (3), "It is always dangerous to paraphrase an enactment." To this may be added the words of Lord Halsbury L.C. in Gresham Life Assurance Society v. Bishop "J deprecate a construction which passes by the actual words nd seeks to limit the words by what is supposed to be something equivalent to the language used by the Legislature."" I would say for myself that a paraphrase is especially dangerous in the case of a Constitution. In my opinion it would under the best of circumstances e unfortunate to adopt that or any other supposed verbal equivalent « the words of the Commonwealth Constitution itself. What ppears to me a decisive consideration for not adhering to the ted paraphrase is that, with the deepest respect to the two ned Judges whose approval it bears, it is fundamentally fallacious. 'shall quote it: - " Sec. 92 may, therefore, so far as it relates to

(1) (1915) 20 C.L.R., at p. 111. (3) (1890) L.R. 17 Ind, App. 122, at (2) (1915) 20 C.L:R. at p. 68. p. 127. k (4) (1902) A.C. 287, at p. 291.

the wheat in New South Wales, and makes no distinction between H. ©. or A.

commerce, be paraphrased thus: Every owner of goods shall be at liberty to make such contracts for the transportation of : from one State to another as he thinks fit without interference by law'? (1). Then is added: "It follows that as soon as he ceases to be the owner of the goods the section ceases to have any operation so far as those goods are concerned." Sec. 92 cannot be limited, in its relation to commerce, to contracts for transportation. That is comprehensively dealt with in McArthur's Case (2), and I now add a reference to Dahnke-Walker Co. vy. Bondurant (3). That limitation seems, however, to have governe d the conception by which the paraphrase is moulded. When one ; it is fully apprehended that commerce includes " intercourse for the purposes of trade in any and all its forms, including the trans portation, purchase, sale and exchange of commodities," the true concept emerges. As already formulated, it consists of acts. acts are attributes not of property but of persons. The right of inter-State trade and commerce protected by sec. 92 from Stat interference and regulation is a personal right attaching to individual and not attaching to the goods. To think that there ca D be no infringement of sec. 92 when and in whatever circumstances a State expropriates property, is entirely to misconceive the nature of the situation. To say that on expropriation the new owner, the Government, is free to dispose of the property, and so the power disposition of the property is not interfered with, is nothing to point. The question is, how has the personal right of tradi inter-State by the former owner been interfered with ? That is a personal right, not a property right, and it is a right which no si State can give. The right of passing from one State to another, transporting goods from one State to another and dealing with them in the second State cannot be conferred by either State solely. 4 so sec. 92 must be understood. The right is not an adjunct of goods: it is the possession of the individual Australian, protecte 1 from State interference by sec. 92, and it is not a sufficient answer to him, when deprived of his goods in order to prevent him from exercising that right, that the new owner, the depriving State,

(1) (1915) 20 ©. 4

• at pp. 548, 550. 291. (2) (1920) 28 ©,

ake a loaf of bread from A and give it to B does not affect A's onal right to eat, because B has the right, if he pleases, to eat bread. The fallacy will become very evident if we imagine a te law, in order to reduce competition in government contracts,

Or, if a State law as an avowed means of restricting leral activities empowered a Minister to expropriate all vehicles other property used for the purpose of conveying Federal Judges to Court or Federal Members of Parliament to Canberra. In

ership had taken place, and the new owner was free to use his y for the purposes needed, either inter-State trade or Federal There is no " magic " as Mr. Cleland said, about expropria- That is to say, expropriation is not a separate subject of State er, it is simply part of the general mass of authority which is erred in broad terms by the State Constitution. It stands, xcept for any express restrictions in the Federal Constitution, as specific subject, exactly in the same position as, for instance, ion and crime. If the State can expropriate by way of compul- to take a certain course, or as a penalty for avoiding it, the State adopt any other form of penalty not expressly forbidden by the itution. e confusion is engendered by the argument that expropriation, ther general or on the basis of property, or as a means of enforcing ain course of action, has the same " effect" if the property is in fact employed in inter-State trade. The fault lies in the of the word "effect."' If it be used in the same sense of business momic effect, it is true ; but if it be used in the sense of legal ect of the statute permitting the acquisition, it is not true. I ve quoted my own words from the Wheat Case (1) where it dealt, that aspect. But I may add what seems to me an apt illustra- in the case of Colonial Sugar Refining Co. v. Irving (2), where rds of Lord Davey have considerable relevance. An Excise the Commonwealth was said to be discriminating because the

(I) (1915) 20 C.L.R, 54. (2) (1906) A.C. 360, at p. 367,

ie as it pleases with the goods. As well it might be said that H.C. or A.

by Lord Davey, said: "The rule laid down by the Act is a gene one, applicable to all the States alike, and the fact that it ope unequally in the several States arises not from anything done by t Parliament, but from the inequality of the duties imposed by States themselves." The subject receives considerable illum from the recent case of Attorney-General for Manitoba v. A General for Canada (1). The province of Manitoba passed lation, and ultimately in a very general form, for the a purpose of protecting its residents from the danger of loss ari from investing their savings in enterprises ill-designed, ill-equipper and ill-conducted. The subject was not denied by the Council to be " peculiarly within the domain of Provincial tion" (2), that is, as we should say, within the ambit of s legislative power so far as its own Constitution is concerned. the legislation insisted on every " person, firm or corporation," selling shares there, getting the approval of a Provincial This was, as construed, in derogation of the powers conf Dominion legislation on corporations formed under that leg There was no doubt about what was called the " objects " and "purposes" of the Act being the protection of the trustful ¢ tempted residents of Manitoba, in itself a purely Provincial obj and purpose. But the Privy Council said that the " effec sd the legal effect, of the Act was to run counter to the Dominion J need scarcely observe that an Act of Parliament cannot stand hi than a constitutional prohibition. And Viscount Sumner said «This is not a mere case of fixing the conditions of local trade or 0 regulating the form or the formalities of the contracts, under whiel business is to be carried on within the Province, or of pr the restrictions under which property within the Province acquired, nor is it a mere matter of local police regulations, or lo administration, or raising of local revenue, or a mere means ofa ing some purely Provincial object." (I have italicized the we "mere.") ". . . Neither isthe legislation . . . saved by the fe that all kinds of companies are aimed at and that there is no spet

(1) (1929) A.C. 260, (2) (1929) A.C., at p- (3) (1929) A.C., at p. 268,

ciple is new, but because it is there invested with the highest authority: " The matter depends upon the effect of the legislation not on the purpose." Speaking of the later legislation, Lord Sumner it was doubtless passed in view of a case of Lukey v. Ruthenian ers' Elevator Co. (2), but it is open to the same objections, " for the

at cannot be done directly." Those observations I regard as a con- ition of my quoted words in the Wheat Case (3), and as applying ippropriately the rule laid down by Lord Watson that has been

"must in doing so observe the constitutional limitations to ich they are subject and not effect their objects by means of ments which both in necessary result and in purpose constitute ation of Dominion companies in the exercise of powers which long to them as essential and characteristic." Now, if we stitute "inter-State trade" for "Dominion companies," the s quoted are most apposite. There is no doubt left in my mind it the State Parliament, on the assumption made, was at least irectly doing what it is not empowered to do directly, and, indeed, y the very wording of the finding of my brother Starke and the uthority claimed by the respondents, this is hardly controvertible. 'This Court has held that sec. 20 of the Dried Fruits Act is invalid, nd that the smallest fine for breach of a determination made under at section would be unlawful. Why, for precisely the same tial conduct on the part of the citizen, the failure to comply the standard of trade arbitrarily fixed by the Minister, instead it prescribed by the Board, a penalty of £12,500 can be lawfully icted, 1 am utterly at a loss to understand. If restraint is to be on inter-State trading, the Commonwealth Parliament can impose it, and then there would be some uniformity both of law and

(1) (1929) A.C., at p. 268, (3) (1915) 20 C.L.R, 54, (2) (1924) 8.C.R. (Can.) 56, (4) (1924) S.C.R. (Can.), at pp. 73, 74.

ination against Dominion companies." Then says Lord H.C. or A. mer (1), in a sentence which is invaluable, not because the 1929-1930

H.C. or A. the statutory authority, which for this purpose I assume, is invalid,

The Wheat Case (1) is no authority to the contrary. The appeal should be allowed and judgment entered for the appellant for the damages found and costs. ;

Ricu J. In this case the inferences drawn by the learned primary Judge as to the purpose, intention or motive of the Minister were attacked, but I see no reason to disagree with them. Butin substance I think they do attribute to the Minister an intention or desire to prevent the appellant's fruit being sold by him for consumption in Australia, and it may be conceded that this necessarily involves the purpose or desire that the fruit should not be sold in any of the five - States which with South Australia make up the Commonwealth. This fact gives the appellant a basis for an argument which, apart from authority, would appear formidable - that the freedom trade, commerce and intercourse between the States, which sec. 92 of the Constitution guarantees, had been impinged upon by Minister's orders of compulsory acquisition.

The rhetorical affirmation of sec. 92 that trade, commerce a intercourse between the States shall be absolutely free hag terseness and elevation of style which doubtless befits the exp D

of a sentiment so inspiring. But inspiring sentiments are often vague and grandiloquence is sometimes obscure. If this declaration of liberty had not stopped short at the high-sounding words " absolutely free," the pith and force of its diction might have beer sadly diminished. But even if it was impossible to define pre what it was from which inter-State trade was to be free, eith because a commonplace definition forms such a pedestrian conclusion or because it needs an exactness of conception seldom achieved where constitutions are projected, yet obmutescence was both unnecessary and unsafe. Some hint at least might have been dropped, some distant allusion made, from which the nature of the immunity intended could afterwards have been deduced by those whose lot is to explain the elliptical and expound the unexpressed. As soon as the section was brought down from the lofty clouds whenee constitutional precepts are fulminated and came to be applied t

course of human affairs, the necessity of knowing and so determin- g precisely what impediments and hindrances were no longer to obstruct inter-State trade obliged this Court to attempt the impossible of supplying an exclusive and inclusive definition of a conception. to be discovered only in the silences of the Constitution. The evils from which sec. 92 meant to free inter-State trade were evidently articular. Universal freedom from all laws both natural and human not in contemplation. It was plain that the Constitution was dealing with the physical restraints which nature still inflicts travellers who journey across this Continent. It was almost as that the Constitution was not conferring upon those engaged

ld claim a constitutional right to damages from a shipowner who ed to deliver them or that a larcenous inter-State carrier

Still less possible was it to believe that sec. 92 meant to free inter-State e of all legal regulation whatever. The operation of the criminal

efore 1900 may have been placed upon the eighth commandment, sec. 92 can scarcely have been framed to put an absconding thief at legal ease so long as his destination was over the boundary. eed, in R. v. Smithers; Ex parte Benson (1), this Court was 0 appalled by the contention that sec. 92 guaranteed freedom inter-State movement to the criminal classes that it refused to that sec. 92 forbade one State in any circumstances to refuse ittance to another's convicted citizens. But, if inter-State trade ot to be free of all legal regulation, what kind of regulation is dden? At an early stage of the long controversy as to the true

The justification for this view, if any there be, is set out

the everyday practice of trade and commerce and the sordid H.C. oF A.

at length in Duncan v. State of Queensland (1). One demerit was found in this view which was sufficient to make it untenable, namely, a majority of the Court steadfastly refused to adhere to it. It must be confessed that it supplied a criterion which was difficult of application, but it may also be claimed that no criterion which is easier of application has hitherto been revealed. But with the progress of time and in spite of the fluctuations of mind and matter the Court has arrived at definite decisions which declare that some things are and some things are not impairments of the freedom - guaranteed by sec. 92. It has been decided in James v. South Australia - (2) that legislative restriction only is forbidden. In W. & A. McArthur Ltd. v. Queensland (3) a majority of the Judges said (whether aaa or as an essential part of their decision it is needless to discuss) that the State only was forbidden to interfere. Thus sec. 92 will do no more than nullify statutes of a State legislature which otherwise would operate to detract from such freedom. But not every statute comes within the category which operates to produce some effect upon inter-State trade. Commerce and intercourse consist of dealings and conduct. In McArthur's Case the decided that a State Act of Parliament which purported to reste commercial dealings of a class extensive enough to include inter-Stat contracts was pro tanto void. It will be observed that the scope and operation of the statute itself displayed a purpose of placing fetter upon commerce although it was inter-State. But in the | pronouncements of the Court (Roughley v. State of New South Wales ; Ex parte Beavis (4); Ex parte Nelson [No. 1] (5)) the Court, as I understand the decisions, considered that a statute which was not directed at commerce as such was not nullified by sec. 92. many years of exploration into the dark recesses of this subject I am content to take the decided cases as sailing directions upon which I may set some course, however unexpected may be the destinati to which it brings me, and await with a patience not enti hopeless the powerful beacon light of complete authoritative exposition from those who can speak with finality. In the meantii

(1) (1916) 22 C.L.R. 556, at pp. 640, (3) (1920) 641. (4) (1928) 42 (2) (1927) 40 O.L.R. 1. (5) (1928)

working principle, and a principle which is all the more satisfactory use it accommodates itself to the decision of this Court in the eat Case (1), the application of which was so much canvassed in case. The decisions I have cited appeared to show that what forbidden by sec. 92 is State legislation in respect of trade and ommerce when it operates to restrict, regulate, fetter or control it, and to do this immediately or directly as distinct from giving rise to e consequential impediment. The Wheat Case decided that a general law expropriating wheat in New South Wales effectually operated to transfer the property in wheat which was in course of inter-State transportation and wheat which was devoted to inter- tate transactions. The reasoning of Griffith C.J., Barton J. and Powers J. was that a transfer, compulsory or otherwise, of the

this view, as I read his judgment, although he qualified its atement by the condition that the State should deal with the yperty on the basis of property and regulate its ownership irrespec- of any element of inter-State trade. I cannot think, however, that this qualification related to the purpose or motive of the Legislature. Apart from the nature of the inquiry which would involved, it could scarcely be in doubt in the Wheat Case that the New South Wales Legislature was impelled to resort to compulsory acquisition as a means of controlling the wheat market use of the difficulty of applying other methods in view of sec. . It appears to me at bottom that the decision of the Court ted on the principle that legislation authorizing compulsory quisition did not immediately or directly affect inter-State trade but did so only consequentially. If this view is right it goes a long istance to decide the present case. The State of South Australia ook the control of the marketing of dried fruit and authorized

tire crop should be disposed of according to its scheme. The e of the power by the acquisition of a particular parcel of may operate consequentially to disable the owner from

I can only express my opinion that these decisions do suggest a H- ©. or A.

embarking upon or carrying out some contemplated or actual -

inter-State transaction, but it is not a law which operates directly x

upon inter-State commerce. The fact that the Minister by th exercise of the power prevents the sale of the fruit inter-State is therefore unimportant. The investigation into his motive or design is immaterial. It would, indeed, be strange if a power reposed in a person who forms part of the Executive were allowed or disallowed by the Federal Constitution according to the motive which actuated its exercise. If the view I take of the position of the relation which the Wheat Case (1) bears to Roughley's Case (2) and Nelson's Cc [No. 1] (3) is correct, it is evident that the competence or i petence of the Minister's order depends wholly upon the provisi of the State legislation which gives him power, namely, sec. 28 the Dried Fruits Act 1924 (S.A.). This provision is made subject to sec. 92 of the Constitution, but there is nothing in the nature the power which the body of the section purports to confer whicl transcends sec. 92. A further condition of sec. 28 is expressed the words " for the purposes of this Act or of any contract made by the Board." It is not easy to say precisely what is covered by these words, but, however narrow a view may be taken, I think that the Minister went outside the scope of the section. The appeal should be dismissed with costs.

Solicitors for the appellant, Edmunds, Jessop & Ward. Solicitor for the respondents, A. J. Hannan, Crown Solicitor f

(1) (1915) 20 G.L.R. 54. (2) (1928) 42 C.LLR. 162. (3) (1928) 42 C.L.R. 209,